Infineon Technologies AG v. Lv Chun Yu / Shen Zhen Shi Chuang Wei Dian Zi You Xian Gong Si
Claim Number: FA1811001816286
Complainant is Infineon Technologies AG (“Complainant”), represented by Gary J. Nelson of Lewis Roca Rothgerber Christie LLP, California, USA. Respondent is Lv Chun Yu / Shen Zhen Shi Chuang Wei Dian Zi You Xian Gong Si (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <infineon-chip.com> (‘the Domain Name’), registered with Alibaba Cloud Computing (Beijing) Co., Ltd..
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 13, 2018; the Forum received payment on November 13, 2018.
On November 14, 2018, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <infineon-chip.com> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. 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 November 15, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 5, 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@infineon-chip.com. Also on November 15, 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 December 10, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The language of the proceedings should be English as the Domain Name has been registered in English characters and including the English word ‘chip’ which shows the Respondent is conversant in English.
The Complainant is the owner of the trade mark INFINEON registered, inter alia, in the USA and China for communications related goods and services registered since 2001. It also has registered its logo in the USA and China as a trade mark with first use recorded as 2009.
The Domain Name is confusingly similar to the Complainant’s trade mark including it in its entirety and adding only a hyphen, the generic term ‘chip’ and the gTLD .com which do not distinguish the Domain Name from the Complainant’s mark.
The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorized by the Complainant. The use is commercial so it cannot be legitimate noncommercial fair use. The Respondent claims to be an authorized distributor when it is not and offers competing products to the Complainant. This is not a bona fide offering of goods and services. The Respondent is using the Complainant’s figurative logo and has registered and is using the Domain Name in bad faith diverting and confusing Internet users for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark INFINEON registered, inter alia, in the USA and China for communications related goods and services registered since 2001.
The Domain Name registered in 2016 is attached to a site using the Complainant’s logo that sells competing products not connected with the Complainant.
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.
Identical and/or Confusingly Similar
The Domain Name in this Complaint combines the INFINEON mark owned by the Complainant (registered in, inter alia, USA and China for communication related services registered first in time in the USA from 2001), a hyphen and the gTLD .com.
The gTLD .com does not serve to distinguish the Domain Name from the Complainant’s marks. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). The addition of a hyphen does not serve to distinguish the Domain Name from the Complainant’s marks. See Health Devices Corp. v Aspen STC, FA 158254 (Forum July 1, 2003) (The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4 (a)(i)).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized the use of its marks. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. 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).
The web site attached to the Domain Name uses the Complainant's INFINEON mark and uses the Complainant’s logo so that the Respondent’s site could be taken to be an official site of the Complainant, yet offers competing products. It does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. (See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to advertise services which competed with the Complainant's business did not constitute a bona fide use of goods and services).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it uses the Complainant’s logo to sell competing goods. This shows that the Respondent is aware of the Complainant and its business. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and 4 (b)(iii)
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <infineon-chip.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 10, 2018
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