Knight Transportation, Inc. v. Liu Bin
Claim Number: FA1708001746967
Complainant is Knight Transportation, Inc. (“Complainant”), represented by Casey Walters of Knight Transportation, Inc., Arizona, USA. Respondent is Liu Bin (“Respondent”), People’s Republic of China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <knightswift.com> and <knight-swift.com>, 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 30, 2017; the Forum received payment on August 30, 2017. The Complaint was submitted in both Chinese and English.
On Aug 31, 2017, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <knightswift.com> and <knight-swift.com> domain names are registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the names. 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 September 6, 2017, the Forum served the Complaint and all Annexes, including a Written Chinese language Notice of the Complaint, setting a deadline of September 26, 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@knightswift.com, postmaster@knight-swift.com. Also on September 6, 2017, 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 September 28, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant provides interstate shipping and transportation-related goods and services. Complainant uses the KNIGHT TRANSPORTATION (“KNIGHT”) and SWIFT marks in conjunction with its business practices. Complainant registered the KNIGHT mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,043,421, registered Mar. 11, 1997). Complainant also registered the SWIFT mark with USPTO (Reg. No. 3,311,758, registered Oct. 16, 2007). Prior to April 2017, Knight Transportation and Swift Transportation were individual, publically traded companies. Compl. ¶ [6][c]. On April 10, 2017, Knight and Swift merged to create a single entity, Knight-Swift Transportation—Complainant in this matter. See Compl. Ex. E. Complainant filed to register the KNIGHT-SWIFT TRANSPORTATION mark (“KNIGHT-SWIFT”) with USPTO following the merger (Ser. No. 87,408,393, filed Apr. 12, 2017); a notice of publication was received on Aug. 29, 2017. See Compl. Ex. F. Respondent’s <knightswift.com> domain incorporates both the KNIGHT and SWIFT marks. Respondent’s <knight-swift.com> domain incorporates the mark of the merged entities, KNIGHT-SWIFT, in its entirety.
Respondent does not have rights or legitimate interests in <knightswift.com> and <knight-swift.com>. Complainant has not authorized or licensed Respondent to use the KNIGHT, SWIFT, or KNIGHT-SWIFT marks in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <knightswift.com> and <knight-swift.com> domain names resolve to inactive webpages indicating that the domain names are for sale. See Compl. Ex. G–H. Moreover, Respondent offered to sell the disputed domain names to Complainant, further evincing a lack of rights or legitimate interests. See Compl. Ex. I.
Respondent registered and is using <knightswift.com> and <knight-swift.com> in bad faith. Respondent registered the domain names on the day that the Knight-Swift merger was announced, indicating opportunistic bad faith. Respondent offered to sell <knightswift.com> and <knight-swift.com> to Complainant for a price in excess of the registration costs. The disputed domain names resolve to inactive websites with no demonstrable intent of use. Additionally, the resolving webpages indicate that the domains are for sale. See Compl. Ex. G–H.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered <knightswift.com> and <knight-swift.com> on April 10, 2017. See Compl. Ex. A.
C. Additional Submissions
Respondent filed a non-responsive Response in the form of an email to the Forum claiming, with no evidence, that the disputed domain names consist of the nicknames of Respondent and his girlfriend.
The Panel finds that the disputed domain names are confusingly similar to Complainant’s trademark; that Respondent has no rights or legitimate interests in or to the disputed domain names; and that Respondent has engaged in bad faith use and registration of the disputed domain names.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English. The non-responsive Response filed by Respondent further indicates its mastery of the English language.
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 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 Panel finds that the disputed domain names, <knightswift.com> and <knight-swift.com>, are confusingly similar to Complainant’s trademark, KNIGHT-SWIFT TRANSPORTATION. Complainant has adequately pled it rights and interests in and to this trademark. Respondent arrives at the disputed domain names by simply deleting a hyphen or a space and adding the g TLD “.com” to the trademark. This is insufficient to distinguish the disputed domain names from Complainant’s trademark.
As such, the Panel finds the disputed domain names to be confusingly similar to Complainant’s trademark.
Further, the Panel finds that Respondent has no rights or legitimate interests in or to the dispute domain names. Respondent has no permission or license to use the trademark as a domain name. Respondent is also not commonly known by the disputed domain name. In Respondent’s non-responsive Response, it claims that it is commonly known by the disputed domain name as the disputed domain names consist of nicknames of Respondent and Respondent’s girlfriend. Even if this is true, this information comes to this Panel in a non-responsive Response and includes no evidence. The evidence that is available comes from Complainant indicating that the web sites are parked and not used as Respondent claims: “we met on April 8th this year and became a couple. Connect two names together in order to express the intimate relationship between us, and later to establish a website to record our lives, so I registered two domains on April 10.” Even if it were believable that two people would move so close in just two days, the non-responsive Response includes no evidence and therefore shall be dismissed as irrelevant.
Complainant also argues that Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. To support its argument, Complainant demonstrates that Respondent’s <knightswift.com> and <knight-swift.com> domain names resolve to inactive webpages indicating that the domain names are for sale. See Compl. Ex. G–H. “[Policy ¶] 4(c)(i) requires [r]espondent to show 1) ‘demonstrable’ evidence of such preparations to use the domain name, and 2) that such preparations were undertaken ‘before any notice to [respondent] of the dispute.’” Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000). Respondent has no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it fails to make any active use of the domain name. See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007).
Moreover, Complainant asserts that Respondent offered to sell the disputed domain names to Complainant, further evincing a lack of rights or legitimate interests. See Compl. Ex. I. Respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provides additional evidence that respondent has no rights or legitimate interests in the contested domain name. See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007). Given the evidence provided, the Panel concludes that Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use under Policy ¶¶ 4(c)(i) and 4(c)(iii).
As such, the Panel finds that Respondent has no rights or legitimate interest in or to the disputed domain names.
The Panel also finds that Respondent registered and used the disputed domain names in bad faith. Complainant states that Respondent offered to sell <knightswift.com> and <knight-swift.com> to Complainant for a price in excess of the registration costs. “[I]n determining whether Respondent has sought consideration in excess of its out-of-pocket costs, the Policy makes clear that only costs related to the domain name are to be considered, and not those related to the creation or maintenance of the connected website.” Am. Online, Inc. v. Prijic, FA 112639 (Forum June 27, 2002). Likewise, panels have found bad faith where Respondent made no use of the domain names except to offer them to sale to Complainant. See Universal City Studios, Inc. v. Meeting Point Co., D2000-1245 (WIPO Dec. 7, 2000); see also Little Six, Inc. v. Domain For Sale, FA 96967 (Forum Apr. 30, 2001) (finding Respondent's offer to sell the domain name at issue to Complainant was evidence of bad faith). Therefore, the Panel concludes that Respondent violated ¶ 4(b)(i) of the Policy by offering to sell <knightswift.com> and <knight-swift.com> to Complainant.
Next, Complainant argues that the disputed domain names resolve to inactive websites with no demonstrable intent of use. Additionally, the resolving webpages indicate that the domains are for sale. See Compl. Ex. G–H. “Mere [failure to make an active use] of a domain name can qualify as bad faith if the domain name owner’s conduct creates the impression that the name is for sale.” Cruzeiro Licenciamentos Ltda. v. Sallen, D2000-0715 (WIPO Sept. 6, 2000). Thus, the Panel finds that, “[u]nder the circumstances, Respondent’s seemingly inutile holding of the at-issue domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii).” Indiana University v. Ryan G Foo / PPA Media Services, FA1411001588079 (Forum Dec. 28, 2014). In Respondent’s non-responsive Response, it claims that the disputed domain names are being used to record the lives of two people who met on one day and set down a web page two days late to record their love, but this is not supported by any evidence and is unbelievable.
Finally, Complainant contends that Respondent registered the domain names on the day that the Knight-Swift merger was announced, indicating opportunistic bad faith. “Respondent’s registration of the disputed domain name the same day that Complainant issued the press release regarding the acquisition constitutes opportunistic bad faith.” 3M Co. v. Jeong, FA 505494 (Forum Aug. 11, 2005); see also Tech. Props., Inc. v. Hussain, FA 95411 (Forum Sept. 14, 2000) (“Respondent took advantage of the public announcement that Tandy Corporation was changing its name to RadioShack by registering the domain names on the same day as a public announcement of a company’s name change. This is also evidence of bad faith.”). In the instant case, the Panel finds that Respondent registered <knightswift.com> and <knight-swift.com> with opportunistic bad faith pursuant to Policy ¶ 4(a)(iii).
Given the totality of the circumstances and the obvious opportunistic bad faith, the Panel further finds that Respondent had prior knowledge of Complainant’s trademark and its rights and interests therein.
As such, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <<knightswift.com> and <knight-swift.com> domain names transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: September 29, 2017
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