Farheap Solutions, Inc. v. Wu DanHong
Claim Number: FA1506001625175
Complainant is Farheap Solutions, Inc. (“Complainant”), Nevada, USA. Respondent is Wu DanHong (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <opensoft.com>, registered with 35 Technology Co., Ltd.
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.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 19, 2015; the Forum received payment on June 19, 2015.
On June 23, 2015, 35 Technology Co., Ltd. confirmed by e-mail to the Forum that the <opensoft.com> domain name is registered with 35 Technology Co., Ltd. and that Respondent is the current registrant of the name. 35 Technology Co., Ltd. has verified that Respondent is bound by the 35 Technology 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 July 1, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 21, 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@opensoft.com. Also on July 1, 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.
On July 21, 2015, Respondent submitted the Response.
On July 23, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sebastian M W Hughes 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 substantive response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is the owner of a registration in the United States for the trademark OPENSOFT with a date of registration of June 29, 2010 and a date of first use in commerce of August 9, 1994 (the “Trademark”).
The domain name <opensoft.com> comprises the Trademark in its entirety.
Respondent has no rights or legitimate interests in the domain name, which has been used in respect of a pay-per-click website providing sponsored links to third party websites providing products and services in direct competition with those offered under the Trademark by Complainant (the “Website”).
The domain name has been registered and used in bad faith. On several occasions, Respondent has attempted to profit from the domain name by offering to sell the domain name for $20,000.00, $40,000.00, $100,000.00 and $200,000.00.
Respondent’s use of the domain name in respect of the Website also amounts to bad faith.
B. Respondent
As the language of the registration agreement for the domain name is Chinese, Respondent requested that the language of the proceeding be Chinese.
Respondent asked the Forum to provide Respondent with a Chinese language version of the Complaint and to grant an extension of time for filing a more substantive Response. Respondent otherwise made no submissions in the Response.
Complainant has established all the elements entitling it to transfer of the domain name.
Language of the Proceeding
The language of the registration agreement for the domain name is Chinese.
Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement.
However, paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances.
The Website is exclusively an English language website. This demonstrates that Respondent is proficient in English. In the circumstances, the Panel determines that Respondent will not be prejudiced if the language of the proceeding is English.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
Substantive Elements of the Policy
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 substantial evidence or representations in the 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 domain name is identical to the Trademark.
Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organisation) has been commonly known by the domain name even if the respondent has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There is no evidence that Complainant has authorised, licensed, or permitted Respondent to register or use the domain name or to use the Trademark. Complainant has prior rights in the Trademark which precede Respondent’s registration of the domain name by many years. The Panel finds on the record that there is therefore a prima facie case that Respondent has no rights or legitimate interests in the domain name, and the burden is thus on Respondent to produce evidence to rebut this presumption.
Respondent has failed to show that it has acquired any legitimate trademark rights in respect of the domain name or that the domain name has been used in connection with a bona fide offering of goods or services. To the contrary, Respondent has used the domain name in respect of the Website in order to generate pay-per-click revenue by way of sponsored links to third party websites providing products and services in direct competition with those offered under the Trademark by Complainant.
There has been no evidence adduced to show that Respondent has been commonly known by the domain name.
There has been no evidence adduced to show that Respondent is making a legitimate non-commercial or fair use of the domain name.
There is no evidence to support Complainant’s bare assertion that Respondent has offered the domain name for sale. The Panel declines to make a finding of bad faith on this ground.
The Panel however has no hesitation in making a finding of bad faith registration and use due to Respondent’s use of the Website, under paragraph 4(b)(iv) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <opensoft.com> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: August 7, 2015
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