ARCELORMITTAL S.A. v. jenny jen
Claim Number: FA1804001782234
Complainant is ARCELORMITTAL S.A. (“Complainant”), represented by Enora Millocheau of Nameshield, France. Respondent is jenny jen (“Respondent”), Seychelles.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <arcelormittal-construction.us>, registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 18, 2018; the Forum received payment on April 18, 2018.
On April 18, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <arcelormittal-construction.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On April 18, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 8, 2018 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@arcelormittal-construction.us. Also on April 18, 2018, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On May 14, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <arcelormittal-construction.us> domain name is confusingly similar to Complainant’s ARCELORMITTAL mark.
2. Respondent does not have any rights or legitimate interests in the <arcelormittal-construction.us> domain name.
3. Respondent registered and uses the <arcelormittal-construction.us> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, ARCELORMITTAL S.A., is the largest steel producing company in the world and it holds registrations for the ARCELORMITTAL mark with the Unites States Patent and Trademark Office (“USPTO”) (Reg. No. 3,643,643 registered Jun. 23, 2009) and with WIPO (Reg. No. 947,686 registered Mar. 8, 2007).
Respondent registered the <arcelormittal-construction.us> domain name on March 26, 2018, and is inactively holding the domain name.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds that Complainant has sufficiently demonstrated rights to its ARCELORMITTAL mark through its registrations with the USPTO and WIPO. See Fossil Group, Inc. v. wuruima wu, FA 1544486 (Forum Mar. 21, 2014) (holding, “Complainant’s registration of the FOSSIL mark with trademark agencies worldwide, including the USPTO and SAIC, establishes Complainant’s rights in the FOSSIL mark pursuant to Policy ¶ 4(a)(i).”); see also Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”).
Respondent’s <arcelormittal-construction.us> domain name simply adds the generic term “construction,” a hyphen, and the “.us” ccTLD to Complainant’s mark. Such additions to a mark do not distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy; see also Crocs, Inc. v. [Registrant], FA 1043196 (Forum Sept. 2, 2007) (determining that “the addition of a ccTLD is irrelevant to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names”). Consequently, the Panel finds that Respondent’s <arcelormittal-construction.us> domain name is confusingly similar to Complainant’s ARCELORMITTAL mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent has no rights or legitimate interests in the <arcelormittal-construction.us> domain name and is not commonly known by the domain name. Complainant states that Respondent is not authorized to use Complainant’s ARCELORMITTAL mark. The WHOIS information identifies Respondent as “Jenny Jen.” Accordingly, the Panel finds that Respondent is not commonly known by the dispute domain name under Policy ¶ 4(c)(iii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant contends that Respondent is inactively holding the <arcelormittal-construction.us> domain name and has made no demonstrable plans to use the domain name. The inactive holding of a disputed domain name does not constitute a bona fide offering of goods or services, or a legitimate fair use under Policy ¶¶ 4(c)(ii) or (iv). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”). Complainant provides a screenshot of the disputed domain name which resolves to a blank website with an error message written in French. Consequently, the Panel finds that Respondent has no rights or legitimate interests under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts that Respondent registered and is using the <arcelormittal-construction.us> domain name in bad faith as Respondent inactively holds the disputed domain name, containing its registered mark. In the absence of any evidence to the contrary, the Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See Indiana University v. Ryan G Foo / PPA Media Services, FA1411001588079 (Forum Dec. 28, 2014) (“Under the circumstances, Respondent’s seemingly inutile holding of the at-issue domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <arcelormittal-construction.us> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 15, 2018
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