Nu Mark LLC v. WU HUANHUAN / WUHUANHUAN
Claim Number: FA1703001719508
Complainant is Nu Mark LLC (“Complainant”), represented by Thomas E. Zutic of DLA Piper LLP (US), District of Columbia, USA. Respondent is WU HUANHUAN / WUHUANHUAN (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is/are <apexvape.net>, registered with HiChina Zhicheng Technology Limited.
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 an English language Complaint to the Forum electronically on March 1, 2017; the Forum received payment on March 1, 2017.
On March 2, 2017, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <apexvape.net> domain name is registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the name. HiChina Zhicheng Technology Limited has verified that Respondent is bound by the HiChina Zhicheng Technology Limited 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 March 3, 2017, the Forum served the English language Complaint and all Annexes, including English and Chinese language Written Notices of the Complaint, setting a deadline of March 23, 2017 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@apexvape.net. Also on March 3, 2017, the English and Chinese language Written Notices 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 March 20, 2017, the Respondent sent an informal email communication to the Forum.
Having received no formal Response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On April 7, 2017, 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 response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is an affiliate of Philip Morris USA Inc. and is the owner of numerous registrations for its APEX word and device trademark (the “Trademark”), including U.S. Registration Nos. 5082503, 5083112, and 5100706. Complainant uses the Trademark in association with its electronic vapor (more commonly known as “e-vapor”) products and related goods and services.
The domain name is confusingly similar to the Trademark.
Respondent has no rights or legitimate interests in the domain name.
Respondent has registered and used the domain name in bad faith.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. Respondent attached to his informal email sent to the Forum, a copy of a business registration certificate for a company based in Dongguan in China, and a copy of a Chinese trade mark application certificate for a device mark APEX VAPE.
Complainant has established all the elements entitling it to transfer of the domain names.
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 formal 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 domain name comprises the Trademark in its entirety together with the word “vape”, which is the commonly-used abbreviation for Complainant’s e-vapor products sold under the Trademark. The domain name is accordingly confusingly similar to the Trademark.
Respondent has failed to demonstrate any rights or legitimate interests in the domain name. The undisputed evidence shows that the domain name has never been used. At the time of filing of the Complaint, it was resolved to a Chinese language landing page. As at the date of this Decision, it is resolved to a blank page.
There is no evidence before the Panel linking Respondent, an individual, with the company referred to in Respondent’s informal email.
Even if there were any such evidence, the Panel notes Respondent has merely exhibited a copy of a certificate in respect of a pending trademark application in China (in the name of the Dongguan company). A mere pending application for registration of a trademark does not confer any rights on the applicant. There is no evidence before the Panel of Respondent (or the applicant for registration of the APEX VAPE and device mark in China) having made any use of the said mark at all.
In all the circumstances, the Panel concludes that Respondent must have known of Complainant and of its rights in the Trademark when it registered the domain name. Amongst other things, the Trademark is a well-known mark in relation to e-vapor products; the domain name comprises the Trademark in its entirety together with the word “vape”, which is merely descriptive of Complainant’s products marketed and sold under the Trademark; and the domain name has never been used. The Panel concludes that bad faith registration and use has accordingly been made out.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <apexvape.net> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: April 21, 2017
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