Andersen Tax LLC v. 汤洲 / 汤洲
Claim Number: FA1806001791270
Complainant is Andersen Tax LLC (“Complainant”), represented by Oscar L. Alcantara of Andersen Tax LLC, Illinois, USA. Respondent is 汤洲 / 汤洲 (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <andersen-tax.com>, registered with eName 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 12, 2018; the Forum received payment on June 12, 2018. The Complaint was received in both Chinese and English.
On June 13, 2018, eName Technology Co., Ltd. confirmed by e-mail to the Forum that the <andersen-tax.com> domain name is registered with eName Technology Co., Ltd. and that Respondent is the current registrant of the name. eName Technology Co., Ltd. has verified that Respondent is bound by the eName 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 June 19, 2018, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of July 9, 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@andersen-tax.com. Also on June 19, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 11, 2018, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant, Andersen Tax LLC, provides tax and business consulting services to individuals and businesses around the world using the ANDERSEN TAX mark. Complainant has rights in the mark based upon the multiple registrations with trademark agencies such as China’s State Administration for Industry and Commerce (“SAIC”) (e.g., WIPO IRN: 1213748 registered on May 20, 2014.) and the European Union Intellectual Property Office (“EUIPO”) (e.g., WIPO IRN: 1213748 registered on May 20, 2014.) See Amend. Compl. Ex. B. Respondent’s <andersen-tax.com> is confusingly similar to Complainant’s ANDERSEN TAX mark as Respondent incorporates the entire mark, and merely adds a hyphen and the “.com” generic top-level domain (“gTLD”).
Respondent does not have any rights or legitimate interests <andersen-tax.com> domain name. Respondent is not permitted or licensed to use Complainant’s ANDERSEN TAX mark and is not commonly known by the disputed domain name. The Panel notes that Complainant fails to make any arguments pursuant Policies ¶¶ (c)(i) or (iii).
Respondent has registered and is using the domain names in bad faith. Respondent attempts to sell the <andersen-tax.com> domain name to Complainant for an amount in excess of out-of-pocket costs.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was created on September 3, 2014
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s famous trademark; that Complainant failed to make out a prima facie case regarding the second element; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 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 Panel finds that the disputed domain name, <andersen-tax.com> is confusingly similar to Complainant’s famous trademark, ANDERSEN TAX. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the dispute domain name by merely taking the mark in total and adding a hyphen and a g TLD “.com.” This is insufficient to distinguish the disputed domain name from the Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
Complainant adequately alleges that Respondent has no permission right or license to register the domain name and that Respondent is not commonly known by the disputed domain name. However, Complainant fails to carry its burden regarding Policies ¶ (c)(i) or (c)(iii). Complainant is required to make its prima facie case showing Respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii). See Tech Traders LLC / David Page v. Insuladd Environmental Products, FA 1738720 (Forum Aug. 3, 2017) (finding that respondent had overcome complainant’s contentions under the Policy, because complainant failed to make the required prima facie showing of respondent’s lack of rights and legitimate interests in the disputed domain name). Specifically, the complaint is devoid of any allegations regarding attempts by Respondent to make a legitimate noncommercial 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.
This is fatal to Complainant’s case in this instance. As such, the Panel finds that Complainant has not made out its case regarding rights and legitimate interests of the Respondent.
Complainant argues that Respondent registered and uses the <andersen-tax.com> domain name in bad faith because Respondent is attempting to sell the disputed domain name to Complainant. Offering to sell a disputed domain name for valuable consideration in excess of any out-of-pocket costs is evidence of bad faith per Policy ¶ (4)(b)(i). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (finding that the respondent used the domain name in bad faith because he offered to sell the domain name for valuable consideration in excess of any out-of-pocket costs); see also The Lincoln Electric Company v. Wu Kun, FA1612001708751 (Forum January 27, 2017) (panel finds bad faith where respondent offered the domain name for sale to complainant for $650, finding that sum to be “valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the Domain Name”). Here, Complainant argues that in a response to Complainant’s demands, Respondent, without solicitation from Complainant, immediately demanded that Complainant pay $6,500.00 in exchange for transfer of the disputed domain name. See Amend. Compl. Ex. F. Complainant also provides its initial cease and desist letter from which Respondent responded with a demand amount for the disputed domain name. See Amend. Compl. Ex. E. Therefore, the element of bad faith in this case is met.
However, as the Complainant failed to make out a prima facie case against Respondent regarding all three elements of the complaint pursuant to (c)(i) and (c)(iii) of the Policy, the Panel has no choice but to find for the Respondent.
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be denied.
Accordingly, it is Ordered that the <andersen-tax.com> domain name Remain with Respondent.
Kenneth L. Port, Panelist
Dated: July 12, 2018
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