Textron Innovations Inc. v. xie rui dong
Claim Number: FA1704001727767
Complainant is Textron Innovations Inc. (“Complainant”), represented by Jeremiah A. Pastrick, Indiana, USA. Respondent is xie rui dong (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <textron.group>, registered with Chengdu West Dimension Digital Technology Co., Ltd..
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 19, 2017; the Forum received payment on April 19, 2017. The Complaint was received in English.
On April 19, 2017, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <textron.group> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital 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 May 2, 2017, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of May 22, 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@textron.group. Also on May 2, 2017, the Chinese language 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 May 26, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant Textron Innovations Inc. is the owner of the following registrations:
TEXTRON
United States Trademark Registration No. 1090806 issued May 9, 1978 in International Class 12 for, among other goods, SNOWMOBILES, STRUCTURAL PARTS AND FITTED PROTECTIVE COVERS THEREFOR; POWERED SLEDS; ] RACING CARS AND STRUCTURAL PARTS THEREFOR; ELECTRIC AND GAS GOLF CARTS; [ INTERNAL COMBUSTION ENGINES AND MUFFLERS FOR LAND VEHICLES; ] STRUCTURAL AUXILIARY GAS TANKS; SPARK PLUG CONTAINERS AS STRUCTURAL PARTS OF LAND VEHICLES; AIR CUSHION CRAFT AND LANDING GEAR THEREFOR; SURFACE EFFECT SHIPS; [ ROCKET ENGINES FOR LAND VEHICLES; ] MISSILE AND SPACECRAFT PROPULSION SYSTEMS; [ STRUCTURAL ROCKET PROPELLANT TANKS; ] AIRCRAFT LANDING GEAR AND PARTS THEREOF; HELICOPTERS AND AIRPLANES AND STRUCTURAL PARTS THEREOF; METAL AUTOMOTIVE STRUCTURAL BODY PARTS; DECORATIVE TRIM FOR AUTOMOBILES; [ AUTO STEERING AND SUSPENSION STUDS; ENGINE CYLINDER BLOCKS, ENGINE CYLINDER HEADS, FLYWHEEL HOUSINGS, MANIFOLDS, CAMSHAFTS, ALL FOR LAND VEHICLES; CLUTCH HOUSINGS; TRANSMISSION HOUSINGS; FARM TRACTORS; WHEELS AND BRAKE DRUMS FOR LAND VEHICLES
TEXTRON
United States Trademark Registration No. 1090737 issued May 9, 1978 in International Class 9 for, among other goods, PRECISION FLUID SYSTEM COMPONENTS AND ASSEMBLIES-NAMELY, SERVOVALVES, PROPELLANT VALVES, CONTROL VALVES, ACTUATORS, FILTERS, SWITCHES, REGULATORS, GAUGES, VESSELS; FUEL SYSTEM CONTROL VALVES AND MEASUREMENT APPARATUS; [ FIRE SUPPRESSION AND CONTROL UNITS; ] [ GAS METERS AND REGULATORS AND PARTS THEREOF; PRESSURE REGULATORS; NUMERICAL CONTROL UNITS FOR MACHINE TOOLS; NUMERICAL CONTROLS FOR TURRET LATHES; ELECTRONIC AND HYDRAULIC MACHINE TOOL CONTROL UNITS; OPTICAL DUPLICATORS; OPTICAL COMPARATORS; SPECTACLES; EYEGLASSES; EYEGLASS FRAMES AND PARTS THEREOF; CASES FOR HOLDING SPECTACLES AND EYEGLASSES; LENSES; OPHTHALMIC LENS AND LENS BLANKS; OPTICAL MACHINERY USED FOR ADJUSTING AND TESTING LENSES AND LENS MOUNTINGS FOR EYEGLASSES AND SPECTACLES- NAMELY, LENS MARKERS, LENS TESTING UNITS, GAUGERS AND GAUGE RACKS, AND PARTS FOR ALL OF THE FOREGOING; OPTICAL INSTRUMENTS AND DEVICES FOR TESTING AND EXAMINING EYES, SPECTACLES, EYEGLASSES, AND PARTS THEREFOR; PERSONAL SAFETY PRODUCTS AND EQUIPMENT FOR HEARING, EYE, RESPIRATORY, AND HEAD PROTECTION-NAMELY, INDUSTRIAL SAFETY GOGGLES, FACE SHIELDS, MAGNIFYING LENS FOR WELDERS' HEADGEAR, WELDERS' HELMETS, SAFETY HATS AND CAPS, WELDING GLOVES, AND RESPIRATORS; ELECTRICAL RACEWAY PRODUCTS AND SYSTEMS-NAMELY, METAL RACEWAYS, FLOOR BOXES, UNDERFLOOR DUCTS, FLOOR FITTINGS, JUNCTION BOXES, SERVICE POLES; ADAPTORS; ELBOWS; OFFSETS; ] INERTIAL INSTRUMENTS; ELECTROMAGNETIC DEFENSE UNITS; AEROSPACE ANTENNAS; ELECTRO OPTICS; HIGH ENERGY LASER BEAM SYSTEMS; [ DIGITAL WATCH MODULES; ] DIGITAL FREQUENCY SYNTHESIZERS; OSCILLATORS, CRYSTALS AND FILTERS; TEMPERATURE INDICATORS; VOLTMETERS, PRECISION TIMERS AND STOPWATCHES; THERMOCOUPLE INDICATORS; COUNTERS; TRACKING COMPARATORS; DIGITAL PRESETS; REMOTE DISPLAYS; FREQUENCY METERS; TACHOMETERS; [ TAPE- PROGRAMED ELECTRONIC UNIT FOR CHECKING THE OPERATING SYSTEM OF A DIESEL ELECTRIC LOCOMOTIVE. ] ELECTRONIC DEFENSE DETECTION UNIT FOR AIRCRAFT SERVICE FITTINGS, BEING PARTS OF GAS AND WATER METERS.
United States Trademark Registration No. 1090704 issued May 9, 1978 in International Class 7 for, among other goods, MOTORS (NOT FOR LAND VEHICLES); [ CENTRIFUGAL PUMPS, THERMOPLASTIC PUMPS, HEAVY DUTY TRASH PUMPS, DIAPHRAGM PUMPS, PRESSURE PUMPS, ELECTRICAL SUBMERSIBLE PUMPS; ELECTRIC GENERATORS; ] [ CHAIN SAWS; ] [ CONCRETE VIBRATORS; DEMOLITION SAWS; ABRASIVE WHEELS; COMPACTION UNITS; ENGINE CYLINDER BLOCKS; GREY, ALLOID AND DUCTILE IRON CASTINGS FOR ENGINE BLOCKS; ENGINE CYLINDER HEADS; GEARS; ] [ PRECISION BALL, ROLLER AND SLIDING BEARINGS AND BEARING ASSEMBLIES FOR ORIGINAL EQUIPMENT AND THE REPLACEMENT MARKET, EMPHASIZING AEROSPACE, BUSINESS MACHINES, CONSTRUCTION, FARM EQUIPMENT AND MACHINE TOOL INDUSTRIES; VERTICAL MILLING MACHINES; POWER GRINDERS; ] [ HYDRAULIC DUPLICATORS; TOOL CHANGERS; HAND FEED GRINDERS; AUTOMATIC FASTENING MACHINES AND PARTS THEREOF; RIVETING MACHINES; MINE TOOL BITS FOR POWER OPERATED EQUIPMENT; COLD AND HOT HEADING MACHINES; HEADERS; THREADERS; METAL FORMING PRESSES; TRANSFER PRESSES; ] [ ROLLING MILLS; HOBBING MACHINES; ] [ PRECISION SURFACE GRINDERS; CYLINDRICAL AND THREAD GRINDERS; TURRET LATHES; TRACER LATHES; MACHINE TOOLS-NAMELY, WIRE DRAWING MACHINES, EYELET MACHINES, MACHINES FOR FORMING METAL PARTS; COLD AND HOT FORMING MACHINERY, AND PARTS THEREOF; ROCKET ENGINES (NOT FOR LAND VEHICLES); ] MISSILE AND SPACECRAFT PROPULSION ENGINES; ACTUATORS; [ STAPLING, NAILING AND WIRESTITCHING MACHINES FOR INDUSTRIAL FASTENING, PACKAGING AND CONSTRUCTION; MACHINERY FOR MAKING CORRUGATED AND SOLID FIBRE SHIPPING CONTAINERS-NAMELY, COIL AND BELT POWER NAILERS, EXPLOSIVE ACTIVATED NAILERS FOR CONCRETE, CLINCH NAILERS, SHEETERS, AND COMPLETE NAILERS FOR INDUSTRIAL USE AND FOR THE CONSTRUCTION INDUSTRY; ] [ POWDER-ACTUATED FASTENING TOOLS; ] [ WIRE STITCHING, STAPLING, AND TACKING MACHINES; PNEUMATIC POWERED NAILERS AND STAPLERS FOR CONSTRUCTION AND INDUSTRIAL PURPOSES. WIRE STITCHING MACHINES FOR THE GRAPHIC ARTS INDUSTRY; ] [ POWDER ACTUATED TOOLS USED BY THE PLUMBING, ELECTRICAL AND GENERAL COMMERCIAL CONSTRUCTION INDUSTRY; ] INTERNAL COMBUSTION ENGINES; MANIFOLDS, CAMSHAFTS, MUFFLERS (NOT FOR LAND VEHICLES) [; OPTICAL MACHINERY USED FOR MANUFACTURING AND FINISHING LENSES AND LENS MOUNTINGS FOR EYEGLASSES AND SPECTACLES-NAMELY, BLOCKERS, CLEANERS, EDGERS, GENERATORS, LAP CUTTERS, GRINDERS, PATTERN MAKERS, RECLAIM TANKS AND SURFACERS AND PARTS FOR ALL OF THE FOREGOING ]
These registrations are incontestable under U.S. trademark law and are conclusive evidence of Complainant’s exclusive right to use the TEXTRON mark in the U.S. for the goods covered by the registrations.
FACTUAL AND LEGAL GROUNDS. ICANN Rule 3(b)(ix).
This Complaint is based on the following factual and legal grounds:
Complainant, Textron Innovations Inc., is the owner of the TEXTRON marks that it licenses to Textron Inc. (“Textron”). Textron Innovations Inc. is an affiliate of Textron.
Textron Inc. (NYSE: TXT) is not only one of the world's best known multi-industry companies, it is a pioneer of the diversified business model. Founded in 1923, Textron has grown into a network of businesses with total revenues of $13.4 billion (Textron is ranked 219th on the FORTUNE 500 list of largest U.S. companies), with approximately 34,000 employees with facilities and presence in 25 countries, serving a diverse and global customer base. Textron’s companies include some of the most respected global brands in transportation, including Bell Helicopter, E-Z-GO golf carts and Cessna aircraft. Textron operates a web site at textron.com that features information regarding the company, its products, businesses and subsidiaries. A copy of the Textron home page is attached as Exhibit 4.
[a.] Language of Proceeding. ICANN Rule 11
Complainant acknowledges that the domain registrar agreement provided by the registrar of the disputed domain is in Chinese which, according to ICANN Rule 11, would suggest that these proceedings be undertaken in Chinese. However, ICANN Rule 11 also imparts upon the Panel the authority to determine otherwise should the circumstances of the administrative proceeding so dictate. Furthermore, ICANN Rule 10(b) and 10(c) require that: (1) the Panel ensure that the Parties are treated equally and given fair opportunity to present their cases (ICANN Rule 10(b)); and (2) that the Panel ensure that the administrative proceeding takes place expeditiously (ICANN Rule 10(c)).
Abundant authority exists to support the undertaking of this proceeding in English and Complainant hereby formally requests that the Panel exercise its authority under ICANN Rule 11 to accept Complainant’s filings in English and allow this administrative proceeding to proceed in English.
First, the circumstances of this UDRP support a finding that Respondent is familiar with and can competently communicate in English. In registering the Textron.net domain Respondent targeted a U.S.-based company, utilized Anglican characters in its domain and incorporated English words/trademarks in its domain. For authority supporting a conclusion that targeting a U.S. company/trademark and registering a domain in English support a proceeding being undertaken in English see, for example, Citigroup Inc. v. Chen Ying Quan / 陈应全 / ying quan chen, FA1701001714851 (Forum March 13, 2017); AbbVie Inc. v. Yang Ke / GMG International Limited, FA1702001717945 (Forum April 7, 2017); and Morgan Stanley v. Domain Admin / Whois protection, this company does not own this domain name s.r.o., FA1701001715021 (Forum March 12, 2017).
In addition to Respondent’s presumed proficiency in English based upon the circumstances above, Complainant also requests that the Panel exercise its authority under ICANN Rule 11 and allow these proceedings to be undertaken because of the added burden and expense that translating the proceedings into Chinese would impart upon Complainant as well as the added time and inefficiency that undertaking these proceedings in Chinese would add to the process. As noted above, Complainant is a U.S.-based company and, correspondingly, undertakes its business activities in English. Complainant is not familiar with the Chinese language and does not speak or write in Chinese. Requiring that these proceedings be undertaken in Chinese would impart substantial burden and additional costs upon Complainant and substantially slow the process, which is antithetical to the stipulations of ICANN Rules 10(b) and 10(c). For authority supporting a conclusion that requiring Complainants to undertake proceedings in a language foreign to them would be overly-burdensome, costly and unfair see, for example, The Hain Celestial Group, Inc. v. Chen Yu, FA1611001704285 (Forum January 4, 2017); Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006); and Les Echos v. Zhao Zhong Xian, FA1702001716753 (Forum March 30, 2017).
Based upon the foregoing, Complainant believes that the evidence on the record supports a conclusion that allowing these proceedings to be undertaken in English would align with the policy objectives of ICANN Rules 10(b) and 10(c) and hereby requests that the Panel exercise its authority under ICANN Rule 11 and allow these proceedings to continue in English.
[b.] Confusing similarity. ICANN Rule 3(b)(ix)(i); ICANN Policy ¶4(a)(i).
The domain name Textron.group is confusingly identical to Complainant’s registered Textron marks. Respondent is simply utilizing the Textron name/mark with the top level domain (“tld”) .group. It is well-settled that a domain name, which utilizes a trademark along with additional descriptive, generic terms (in this case the tld .group) does not mitigate the confusing use of the trademark. See, for example, Lockheed Martin Corp. v. Burnup, FA1307001508768 (Forum, Aug. 13, 2013), finding the addition of generic or descriptive term, “stock” to Lockheed Martin insufficient to defeat confusing similarity; Giorgio Armani S.p.A Swiss Branch, Mendriso v. Chung, Case No. D2013-0821 (“adding purely descriptive words which define the product or service offered via the website serves only to compound similarity when used in conjunction with a mark to which the Complainant has rights.”); Victoria’s Secret v. Erno Lokhorst, FA0101000096556 (Forum, March 5, 2001) finding victoriassecretoutlet.com to be confusingly similar to Complainant’s VICTORIA’S SECRET trademark; and ULTA Salon, Cosmetics & Fragrance Inc. v. ultabeautyoutlet.com, FA1505001619434 (Forum, June 25, 2015) finding the domain ultabeauty-outlet.com confusingly similar to Complainant’s ULTA BEAUTY mark.
In light of Complainant’s long-standing registration and use of the Textron marks in connection with a wide variety of goods, it is clear that the domain name Textron.group is confusingly similar to Complainant’s registered TEXTRON marks.
[c.] Rights to or Legitimate Interests. ICANN Rule 3(b)(ix)(2); ICANN Policy
¶4(a)(ii).
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known as Textron. According to the Whois report, the Respondent is either an individual or an organization named xie rui dong. Additionally, just to again confirm, Complainant has not licensed nor otherwise permitted any organization to utilize its TEXTRON mark in connection with any goods or services or to own any domain names incorporating the TEXTRON mark. See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
It is clear that Respondent has no legitimate rights in the domain names at issue and that its purpose for registering the Textron.group domain is to utilize this domain to divert traffic to its website, capitalize upon the confusion that consumers will likely have when navigating to these domains and unfairly profit from these illegitimate and unauthorized uses of the TEXTRON mark in this domain.
[d.] Registered and Used in Bad Faith. ICANN Rule 3(b)(ix)(3); ICANN Policy
¶4(a)(iii).
The facts of record support a finding that Respondent both registered and is using (or plans to use) the domain names at issue in bad faith under Policy ¶4(b)(iii) in that Respondent: (1) registered the domain Textron.group with knowledge of Complainant’s rights in the TEXTRON marks; and (2) is (for the time being at least) passively holding this domain in adversity to Complainant’s rights in the TEXTRON marks.
Complainant’s registered TEXTRON trademark has a date of first use of 1976 and predates Respondent’s domain registration by more than 40 years. Moreover, it cannot be argued in good faith that Respondent did not know about the existence of Complainant’s TEXTRON marks when it registered the domain names at issue.
With regard to bad faith registration in violation of Policy ¶4(b)(iii) past panels have found that registration of a confusingly similar domain with knowledge of a Complainant’s rights in a mark constitute bad faith under Policy ¶4(b)(iii). See, for example, Bluegreen Corp. v. eGo, FA 128793 (Nat. Arb. Forum Dec. 16, 2002) finding bad faith where the method by which the respondent acquired the disputed domain names indicated that the respondent was well aware that the domain names incorporated marks in which the complainant had rights; and ULTA Salon, Cosmetics & Fragrance Inc. v. ultabeautyoutlet.com, FA1505001619434 (Nat. Arb. Forum, June 25, 2015) concluding that Respondent had actual knowledge of Complainant’s rights and therefore registered its domain in bad faith.
Furthermore, Panels have concluded that Respondent’s failure to make an active use of a disputed domain name is evidence of its bad faith registration, use and/or passive holding under Policy ¶4(a)(iii). See, for example, Morgan Stanley v. nashan, FA1612001706094 (Forum January 23, 2017) and Coachella Music Festival, LLC v. Titus Watson, FA1610001699866 (Forum December 2, 2016).
In summary, it cannot be disputed that Complainant has long-standing and well- recognized rights and goodwill in its TEXTRON marks and that the Textron.group domain name at issue is confusingly similar to the TEXTRON marks. Respondent has no legitimate rights in the Textron.group domain names. Respondent has registered and is using the Textron.group domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant claims the proceeding should be conducted in English because Respondent is familiar with and can competently communicate in English. The Panel has the discretion under UDRP Rule 11(a) to determine the appropriate language of the proceedings, taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v Onetz, FA 96196 (Forum Feb. 12, 2001 (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English).
Respondent targeted a U.S.-based company by registering the <textron.group> domain name, utilized Anglican characters in its domain, incorporated English words/trademarks in its domain and incorporated English words/trademarks into the WHOIS information for the domain. Complainant is a U.S. based entity and is unfamiliar with the Chinese language. Translating the materials in this proceeding would greatly burden Complainant. Respondent did not respond even though Respondent received a transmittal notice of the complaint in Chinese.
(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.
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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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.”).
Complainant claims rights in the TEXTRON mark based upon its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,090,704, registered May 9, 1978). Registration with the USPTO (or any other governmental authority for that matter) suffices to demonstrate rights in a mark under Policy ¶4(a)(i), even if Respondent is located in another country. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶4(a)(i).”). Complainant has rights in the TEXTRON mark.
Respondent’s domain name, <textron.group>, is identical to Complainant’s mark because it contains the mark in its entirety and merely adds the gTLD “.group”. A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs. See DD IP Holder LLC v. Phill Aspden, FA 1603215 (Forum Apr. 8, 2015) (finding that the disputed domain name <dunkin.coffee> is identical to Complainant's DUNKIN COFFEE registered mark, as gTLDs that reference goods or services offered under the registered mark may be taken into account). Respondent’s domain name is identical to Complainant’s TEXTRON mark.
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent is not commonly known by the disputed domain name. Where there is no response, the WHOIS information and common sense allow the Panel to decide Respondent is not commonly known by the domain name. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name); see also Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record names the registrant as “xie rui dong.” There is no obvious connection to the disputed domain name. Therefore, the Panel finds Respondent has not been commonly known by the disputed domain name. Complainant has not authorized Respondent to use Complainant’s mark in a domain name.
Complainant claims Respondent failed to use <textron.group> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, the domain name resolves to a parked page (although Complainant did not provide a copy of the parked page, Respondent has not disputed the fact). The domain name does not presently resolve to anything. The passive holding of a domain name evidences a lack of rights and legitimate interests under Policy ¶¶4(c)(i) & (iii). See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶4(c)(iii).”). Respondent failed to use <textron.group> domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use by failing to make any active use of the disputed domain name.
The Panel finds Policy ¶4(a)(ii) satisfied.
The examples of bad faith registration and use set forth in Policy ¶4(b) are not meant to be exhaustive. See, e.g., Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000). The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of others. See, e.g., Match.com, LP v. BillZag and NWLAWS.ORG, D2004-0230 (WIPO June 2, 2004). While Complainant has not made any arguments that would squarely fit within the bounds of Policy ¶4(b) elements, the Panel will consider Respondent’s actions under a nonexclusive inquiry of Policy ¶4(a)(iii).
Complainant claims Respondent registered and used <textron.group> in bad faith because it had knowledge of Complainant’s rights in the TEXTRON mark before registering the disputed domain name. Registration of a disputed domain name including a complainant’s entire mark while knowing of a complainant’s rights is adequate evidence of bad faith under Policy ¶4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The evidence is a little scant on this point. Complainant claims Respondent must have known of Complainant’s TEXTRON mark. Respondent has not responded to the claim. While the Panel finds the quantum of evidence is slight, the Panel still finds by a preponderance of the evidence Respondent registered and used the disputed domain name in bad faith under Policy ¶4(a)(iii) because Respondent actually knew of Complainant’s rights in the Textron mark.
Complainant claims Respondent acted in bad faith because it registered the domain name and failed to make an active use of it. An inactive holding of a domain name is evidence of bad faith under Policy ¶4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶4(a)(iii).”). There is nothing which suggests the disputed domain name was ever used and it presently does not resolve to a web site. Therefore, Respondent registered and used <textron.group> in bad faith under Policy ¶4(a)(iii).
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <textron.group> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Friday, May 26, 2017
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