Micron Technology, Inc. v. aliyun / aliyun<>ttt
Claim Number: FA1809001809118
Complainant is Micron Technology, Inc. (“Complainant”), represented by Jonathan H. Love of Parsons Behle & Latimer, Utah, USA. Respondent is aliyun / aliyun<>ttt (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <micron.xin>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
The undersigned certifies that he she has acted independently and impartially and to the best of his her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 26, 2018; the Forum received payment on September 26, 2018.
On September 27, 2018, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <micron.xin> domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 28, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 18, 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@micron.xin. Also on September 28, 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 October 23, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 Uniform Domain Name 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 ICANN Policy, ICANN 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
Complainant has rights in the MICRON mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,142,670, registered Mar. 10, 1998). See Compl. Annex F. Respondent’s <micron.xin> domain name is identical to Complainant’s mark as it merely adds the “.xin” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <micron.xin> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent hosts a website intended to look and feel like Complainant’s website, displaying Complainant’s mark, logos, and images on the resolving webpage to mislead consumers into believing Respondent is Complainant. See Compl. Annex L.
Respondent registered and uses the <micron.xin> domain name in bad faith. Respondent has attempted to intentionally attract for commercial gain internet users to its website by creating a likelihood of confusion with the MICRON Marks as the source of the website. See Compl. Annex L. Further, Respondent clearly had actual and constructive knowledge of Complainant’s rights in the MICRON mark given the mark is well known and recognized in the global market, including China.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the <micron.xin> domain name on March 30, 2016.
The Panel finds that the disputed domain name is confusingly similar with Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed 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.
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.”).
Preliminary Issue: Language of Proceeding
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
The Panel finds that the disputed domain name, <micron.xin>, is confusingly similar to Complainant’s valid and subsisting trademark, MICRON. Complainant has adequately plead its rights and interest in and to this trademark. Respondent arrives at the disputed domain name by merely adding the g TLD “.xin” to Complainant’s trademark. This is inadequate to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name.
Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent hosts a website intended to look and feel like Complainant’s website, displaying Complainant’s mark, logos, and images on the resolving webpage to mislead consumers into believing Respondent is Complainant. See Compl. Annex L.
As such, the Panel finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant argues that Respondent registered and uses the <micron.xin> domain name in bad faith by creating a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name to commercially benefit by passing itself off as Complainant on the resolving webpage. Using a disputed domain name that passes off as a complainant to trade upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant provides a screenshot of the resolving webpage associated with the disputed domain name, which contains the MICRON mark and various images which Complainant alleges come from Complainant’s own website. See Compl. Annex L.
As such, the Panel finds that Respondent attempted to commercially benefit from Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Further, Complainant claims that Respondent had actual knowledge of Complainant’s MICRON mark at the time of registering the <micron.xin> domain name. Complainant contends that Respondent clearly had knowledge of Complainant’s rights in the MICRON mark given the mark is well known and recognized in the global market, including China. The Panel finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶ 4(a)(iii).
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <micron.xin> domain name be transferred from Respondent to Complainnat.
Kenneth L. Port, Panelist
Dated: October 24, 2018
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