ATOMIC Austria GmbH v. Li XiaoMei
Claim Number: FA1801001767251
Complainant: ATOMIC Austria GmbH of Altenmarkt, Austria.
Complainant Representative: INSIDERS of Paris, France.
Respondent: Li XiaoMei of hexian, International, CN.
Respondent Representative:
REGISTRIES and REGISTRARS
Registries: .TOP Registry
Registrars: Shanghai Meicheng Technology Information Development Co., Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Examiner in this proceeding.
Petter Rindforth, as Examiner.
Complainant submitted: January 17, 2018
Commencement: January 18, 2018
Default Date: February 2, 2018
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Findings of Fact:
The Examiner finds that the Complainant has established trademark rights in the ATOMIC trademark, including:
- European Union trade mark registration No 010981975 ATOMIC (word), filed on June 21, 2012, and registered on October 23, 2012, covering goods in Classes 8, 9, 25 and 28.
- International Trademark registration No 465608 ATOMIC (word), registered on September 7, 1981, and renewed until September 7, 2021; covering goods in Classes 7, 9, 18, 25 and 28. The registration has 28 designated countries, including People's Republic of China.
- US Trademark registration No 1048126 ATOMIC (word), registered on September 14, 1976, and renewed until 2026; covering goods in classes 18, 25 and 28.
- Chinese Trademark registration No 250124 ATOMIC (word), registered on May 15, 1986, and renewed until May 14, 2026; covering “sporting articles”.
The Complainant has provided evidence of use of the trademark, by screenshots from the Complainant’s active web site at www.atomic.com.
Legal Findings and Conclusion:
Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
IDENTICAL OR CONFUSINGLY SIMILAR
The Complainant met the standard sets out in 1.2.6.1. of the URS Procedure since the Complainant has proved its right to the valid International Trademark registration No 465608 ATOMIC (word), as well as other active registrations, and as ATOMIC is a trademark that is in current use.
The relevant part of the disputed domain names are <atomicaut>, <atomicit>, and <atomicsui>, as the added top-level domains – being a required element of every domain name – are generally irrelevant when assessing whether or not a mark is identical or confusingly similar and in this case does nothing to distinguish the disputed domain name from the Complainant’s trademark.
The disputed domain name <atomicaut.top> thereby consists of the Complainant’s trademark ATOMIC, combined with the ISO 3166-1 country code for the Complainant’s home country: Austria (AUT), thereby clearly referring to the Complainant.
The disputed domain name <atomicit.top> consists of the Complainant’s trademark ATOMIC, combined with the descriptive abbreviation for information technology: “IT”, indicating computerised technology assistance for users searching for the Complainant’s products.
The disputed domain name <atomicsui.top> consists of the Complainant’s trademark ATOMIC, combined with the descriptive word “SUI”, meaning “year” (岁 – suì) in Chinese, but is also used as names for several places in China, the home country of the Respondent, such as: Suizhou, Hubei (formely Sui County). It is the Examiners view that this addition is not enough to delete the confusingly similarity with the Complainant’s trademark ATOMIC, only an indication that the Complainant’s goods may now also be available in certain parts of China.
The Examiner concludes that the disputed domain names <atomicaut.top>, <atomicit.top>, and <atomicsui.top> are confusingly similar to the Complainant's trademark ATOMIC.
NO RIGHTS OR LEGITIMATE INTERESTS
The Respondent does not have any rights in <atomicaut.top>, <atomicit.top>, or <atomicsui.top>, as the Complainant has not authorized the Respondent to register domain names containing it’s registered and used trademark ATOMIC.
The Respondent is using all three disputed domain names for web site/s offering products related to the Complainant’s trademark ATOMIC, referring to the Complainant by having copied parts of the Complainant’s web site. Such use can never be accepted as proving legitimate interests.
The Examiner finds that the Complainant has established that the Respondent has no rights or legitimate interests in <atomicaut.top>, <atomicit.top>, or <atomicsui.top>.
BAD FAITH REGISTRATION AND USE
According to the Complainant, the Respondent is not affiliated with the Complainant in any way and was not authorized to use the registered ATOMIC trademark by the Complainant.
The Examiner notes that the web sites connected to the disputed domain names all clearly refers to the Complainant’s goods/products, using text and photos from the Complainant’s original web site. The said use clearly indicates that the Respondent was well aware of the Complainant’s trademark rights at the time of registration of the domain names.
Although the Respondent has not responded, the use also indicates that the Respondent has registered and is using <atomicaut.top>, <atomicit.top>, and <atomicsui.top> to attract for commercial gain, Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s web site.
The Examiner concludes that the Respondent has both registered and is using the disputed domain names <atomicaut.top>, <atomicit.top>, and <atomicsui.top> in bad faith.
After reviewing the Complainant’s submissions, the Examiner determines that
the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain names be SUSPENDED for the duration of the registration:
<atomicaut.top><atomicit.top><atomicsui.top>
Petter Rindforth, Examiner
Dated: February 04, 2018
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