Andersen Corporation v. zhu xumei
Claim Number: FA1502001605830
Complainant is Andersen Corporation (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is zhu xumei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <andersenwindows.org> ('the Domain Name'), registered with Name.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or 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 February 19, 2015; the Forum received payment on February 19, 2015.
On February 23, 2015, Name.com, LLC confirmed by e-mail to the Forum that the <andersenwindows.org> domain name is registered with Name.com, LLC and that Respondent is the current registrant of the name. Name.com, LLC has verified that Respondent is bound by the Name.com, LLC 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 February 23, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 16, 2015 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@andersenwindows.org. Also on February 23, 2015, 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 March 20, 2015 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 summarised as follows:
The Complainant owns the registered trade mark ANDERSEN in the USA for Products related to windows and doors. The mark has been in continuous use since 1903. It has a web site at www.andersenwindows.com. The ANDERSEN mark has acquired substantial goodwill and is an extremely valuable commercial asset.
The Respondent registered the Domain Name in August 2014.
The Domain Name is confusingly similar to the Complainant's mark as the use of 'windows' does not change the overall impression that the Domain Name is associated with the Complainant. The addition of .org is not a distinguishing feature.
The Respondent is not commonly known by and has no trade mark rights in ANDERSEN or any other right or legitimate interest in it. It has no permission to use the ANDERSEN mark. It is not using the Domain Name for a legitimate non-commercial or fair use. The registration of a domain for the purpose of redirecting Internet users in another's products is not a bona fide offering of goods. The offering for sale indicates a lack or rights and legitimate interests in the name.
The Domain Name has been registered and is being used in bad faith.
The Domain Name has been registered and used primarily for commercial gain as the web site appears connected with the Complainant. Consumers correctly typing andersenwindows, but incorrectly typing .org instead of .com are directed to the Respondent's web site.
The Respondent's web site uses the term ANDERSEN multiple times in links and sponsored listings . The content on the site is related to windows and doors, the same goods offered by Andersen under the ANDERSEN marks and links to the Complainant's own goods and services and also to sites of its competitors. This causes customer confusion and gives the false impression that the web site is affiliated, associated or connected with the Complainant. It causes disruption to the Complainant's business. The content of the web site shows actual knowledge of the Complainant and its trade mark.
The Respondent is also offering the Domain Name for sale for 1500USD on Sedo.com and has also offered it to the Complainant for this price. In the e mail to the Complainant Respondent states most companies ‘own all domains whether it is .com, .net, .org etc. to prevent any lost customers to their web site to promote their products and services'. By this statement Respondent admits that the Domain Name causes confusion leading customers to believe that the web site associated with the Domain Name and is affiliated, associated or connected with the Complainant or its products and services. By the statement the Respondent threatens the Complainant that failure to buy and control the Domain Name will result in lost customers and sales.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Respondent registered the Domain Name in August 2014. The Respondent's web site uses the term ANDERSEN multiple times in links and sponsored listings. The content on the site is related to windows and doors, the same goods offered by the Complainant under the ANDERSEN marks and links to the Complainant's own goods and services and also to its competitors. The Respondent has offered to sell the name on the site attached to it via sedo.com for US$1500 and has also offered it for sale to the Complainant for the same amount via e mail.
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(e), 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 (Nat. Arb. 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 Respondent does not appear to have any trade marks associated with the name ANDERSEN. There is no evidence that he is commonly known by this name and he does not have any consent from the Complainant to use this name. He does not appear to have used the Domain Name for any bona fide offering of services. Currently, the web site attached to the Domain Names indicates that the Domain Name is for sale and points to pay per click links. The Respondent does not explain why he has registered a domain name consisting, apart from the gTLD .org, of the Complainant's trade mark and the area of business in which the Complainant operates. Given the contents of the site attached to the Domain Name the Panelist infers the Respondent's intentions were to sell the Domain Name or use it for pay per click links, for profit capitalising on the Complainant's goodwill in its trade mark. See Disney Enters, Inc. v Kamble FA 918556 (Nat Arb Forum Mar 27 2007) (holding that the operation of a pay per click web site at a confusingly similar domain name was not a bona fide offering of goods and services under Policy 4 (c) (i), nor a non-commercial or fair use under Policy 4 (c)(iii). Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name.
Paragraph 4(b) of the Policy sets out four non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including
"circumstances indicating that [the Respondent has] registered or [has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [its] documented out-of-pocket costs directly related to the domain name;" (s4(b)(i))
The material attached to the Domain Name indicates that the Domain Name is for sale. The Respondent has also sent an e mail to the Complainant offering to sell the Domain Name to the Complainant for $1500. The Respondent has given no satisfactory reason why it has a legitimate interest in a domain name comprising the Complainant's trade mark ANDERSEN and a generic term indicating the business in which the Complainant operates. . Accordingly, the Panel finds on the balance of probabilities based on the evidence that the Respondent has registered or acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring it to the Complainant who is the owner of the trademark ANDERSEN or to a competitor of the Complainant, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the Domain Name; See World Wrestling Fed'n Entm't, Inc. v Bosman D99-0001(WIPO Jan 14, 2000) (finding that the respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out of pocket costs). The Panel, therefore, finds that bad faith has been demonstrated under s 4(b)(i) of the Policy. As such there is no need to further consider contentions of the Complainant with regard to additional grounds for bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <andersenwindows.org> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: 24 March, 2015
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