Seiko Epson Corporation v. CONG TY TNHH MOT THANH VIEN VIET DUC TRI
Claim Number: FA1808001803022
Complainant is Seiko Epson Corporation (“Complainant”), represented by Rachel Jacques of Maschoff Brennan, Utah, USA. Respondent is CONG TY TNHH MOT THANH VIEN VIET DUC TRI (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <epsonvietnam.net>, registered with P.A. Viet Nam Company Limited.
The undersigned certifies that he has acted independently and impartially and to the best of his 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 23, 2018; the Forum received payment on August 24, 2018.
On August 25, 2018, P.A. Viet Nam Company Limited confirmed by e-mail to the Forum that the <epsonvietnam.net> domain name is registered with P.A. Viet Nam Company Limited and that Respondent is the current registrant of the name. P.A. Viet Nam Company Limited has verified that Respondent is bound by the P.A. Viet Nam Company 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 August 29, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 18, 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@epsonvietnam.net. Also on August 29, 2018, 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 20, 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.
Preliminary Issue: Language of Proceeding
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that 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.
A. Complainant
Complainant, Seiko Epson Corporation is an international manufacturer of, and world leader in, the design, production, and distribution of high technology products. Complainant uses the EPSON mark to provide and market its products and services. Complainant claims rights in the EPSON mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,134,004, registered on Apr. 29, 1980). See Compl. Ex. B. Respondent’s <epsonvietnam.net> domain name is confusingly similar to Complainant’s EPSON mark as it incorporates the mark in its entirety, merely adding the geographic term “vietnam” and the generic top level domain (“gTLD”) “.net.”
Respondent does not have any rights or legitimate interests in the <epsonvietnam.net> domain name. Respondent is not permitted or licensed to use Complainant’s EPSON mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent is attempting to pass itself off as Complainant in order to sell Complainant’s products.
Respondent has registered and uses the <epsonvietnam.net> domain name in bad faith. Respondent is attempting to attract Internet users to its website where it offers Complainant’s products for commercial gain. Additionally, Respondent had actual knowledge or constructive notice of Complainant’s EPSON mark prior to registering the <epsonvietnam.net> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was created on June 7, 2017.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; 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, <epsonvietnam.net>, is confusingly similar to Complainant’s valid and subsisting trademark, EPSON. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely appending the generic geographic word “vietnam” and g TLD “.net.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the dispute domain name.
Further, Respondent does not use the disputed domain name for any bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent apparently attempts to pass itself off as Complainant in order to sell Complainant’s products.
As such, the Panel finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant claims Respondent attempts to attract, for commercial gain, users to the disputed domain name which feature products that are, at best, competitive with those offered by Complainant under its EPSON mark, and are therefore competing with Complainant and its business. Using a confusingly similar domain name to commercially benefit via the sale of competitive products can evince bad faith registration and use per Policy ¶ 4(b)(iv). See Z Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business). The disputed domain name’s resolving webpage blatantly displays Complainant’s EPSON marks in an attempt to confuse consumers and pass itself off as Complainant. See Compl. Annex D. Further, Respondent is using the EPSON mark to advertise and sell competitive products under the guise that Respondent is Complainant. Id.
Finally, the Panel finds that Respondent had actual knowledge of Complainant’s prior rights and interests in and to the trademark EPSON. Due to Respondent’s use of Complainant’s EPSON mark, Respondent’s attempt to pass itself off as Complainant, and Respondent’s attempt to sell competitive products, the Panel finds that Respondent possessed actual knowledge of Complainant’s rights and interests in and to the trademark EPOSN.
As such, the Panel finds that Respondent registered and uses the disputed domain name in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <epsonvietnam.net> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: September 21, 2018
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