Invesco Ltd. v. Xiao Feng
Claim Number: FA1801001766618
Complainant is Invesco Ltd. (“Complainant”), represented by Mary Grace Gallagher of Alston & Bird, LLP, Georgia, USA. Respondent is Xiao Feng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <invesco.fund>, registered with Chengdu West Dimension Digital 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 January 12, 2018; the Forum received payment on January 12, 2018. The Complaint was received in both Chinese and English.
On January 16, 2018, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to the Forum that the <invesco.fund> 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 January 16, 2018, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of February 5, 2018 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@invesco.fund. Also on January 16, 2018, 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.
A timely Chinese language Response was received and determined to be complete on February 5, 2018.
On February 8, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a corporation duly organized and existing under the laws of Bermuda. Complainant’s headquarters are located in Atlanta, Georgia, USA. Since at least as early as 1979, Complainant and its affiliates have provided a wide range of investment strategies and vehicles to its retail, institutional, and high net worth clients around the world, under the trademark INVESCO (the “Trademark”), including in China, where Respondent is based. As of October 31, 2017, Complainant had more than $928 billion in assets under its management. Among Complainant’s many global offices are offices located in China - in Beijing, Shanghai, Hong Kong, and Shenzhen.
Complainant is the owner of numerous registrations for the Trademark in jurisdictions worldwide, including US registration No. 1,825,441, with a registration date of March 8, 1994; and Chinese registration No. 2,018,089, with a registration date of August 14, 2004.
The domain name is confusingly similar or identical 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.
The domain name is resolved to a website (the “Website”) which promotes the financial and investment services offered by a direct competitor in China of Complainant, Shenzhen Yi Jin Investment Management Co., Ltd. Respondent is the legal representative of Shenzhen Yi Jin Investment Management Co., Ltd. according to its registration with the Administration of Industry and Commerce.
Respondent has also offered to sell the domain name to Complainant for prices well in excess of Respondent’s out-of-pocket expenses incurred in registering the domain name.
B. Respondent
Respondent has legally registered the domain name.
Respondent has a wide range of interests, in particular research and analysis. Respondent felt that the new gTLD “.fund” is great. Upon finding that the domain name was available, in June 2017, Respondent registered the domain name, comprising “INVES” (Chinese meaning: research and analysis) and “CO” (Chinese meaning: “limited”). Respondent was only interested in research and analysis when registering the domain name, and did not have Complainant in mind. Complainant need not be concerned about any potential infringement of its rights in the Trademark.
Respondent made its offers to sell the domain name to Complainant in order to stop Complainant’s representatives from harassing Respondent and in order to obtain a reasonable price for the domain name.
As the registered owner of the domain name, Respondent has the right to use it, and to dispose of it, as Respondent sees fit.
Complainant has maliciously abused the UDRP process and has engaged in reverse domain name hijacking (“RDNH”).
Complainant has established all the elements entitling it to transfer of the domain names.
Complainant has not made a language request. Respondent requests that the language of the proceeding be Chinese. Complainant submitted the Complaint in both English and Chinese language. All communications between the Forum and Respondent were sent in Chinese.
Pursuant to Rule 11(a), the Panel determines there is sufficient evidence to demonstrate the likely possibility that Respondent is conversant in English. In pre-Complaint email correspondence, Respondent has communicated with Complainant’s representatives in flawless English. The Panel has also taken into account the need to avoid delay and additional costs. In the circumstances, the Panel has decided that (1) it will accept the filing of the Complaint in both Chinese and English; (2) it will accept the filing of the Response in Chinese; and (3) it will render this Decision in 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.
The domain name is identical to the Trademark.
Respondent has failed to demonstrate any rights or legitimate interests in the domain name. To the contrary, the disputed domain name has been used in respect of the Website, to deliberately attract Internet users to the competing Website operated by a company of which Respondent is the legal representative.
Respondent does not possess any trademark rights in respect of the domain name.
The Panel finds Respondent’s explanation, absent any supporting evidence, as to the genesis of Respondent’s registration of the domain name unconvincing. The Panel rejects Respondent’s assertion that “INVES” means “research and analysis” in Chinese; and that “CO” means “limited” in Chinese.
In all the circumstances, the Panel has no hesitation in concluding that Respondent has registered and used the domain name in bad faith. The domain name is identical to Complainant’s Trademark, a mark well-known within the financial and investment services industry. In light in particular of the fact Respondent is the legal representative of a direct competitor of Complainant, and in light of the manner of use of the Website, the Panel concludes Respondent must have known of Complainant and of its Trademark when Respondent registered the domain name. Respondent has not made any submissions to the contrary.
The domain name has been used in respect of the Website, in order to promote the competing financial and investment services of Shenzhen Yi Jin Investment Management Co., Ltd.
Furthermore, in pre-Complaint email correspondence with Complainant’s representatives, Respondent offered to sell the domain name to Complainant for US$50,000 or, alternatively, to rent the domain name to Complainant for US$60,000 over a ten year period.
RDNH
Respondent has failed to adduce any evidence to demonstrate that Complainant has engaged in RDNH. Respondent’s request for a finding of RDNH is wholly without merit, and is rejected.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <invesco.fund> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: February 13, 2018
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