Ontel Products Corporation v. Dsaf Sadfsad Dsa Fsadf / Dsaf Sdafsad
Claim Number: FA1906001849916
Complainant is Ontel Products Corporation (“Complainant”), represented by Jenny T. Slocum of DICKINSON WRIGHT PLLC, Washington DC, USA. Respondent is Dsaf Sadfsad Dsa Fsadf / Dsaf Sdafsad (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <shopsarcticairstoress.site>, <shoparcticairstores.site>, <arcticairstoress.site>, <arcticairstoreshop.site>, and <arcticairstores.site>, registered with Nics Telekomunikasyon A.S.
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 June 26, 2019; the Forum received payment on June 26, 2019.
On June 28, 2019, Nics Telekomunikasyon A.S. confirmed by e-mail to the Forum that the <shopsarcticairstoress.site>, <shoparcticairstores.site>, <arcticairstoress.site>, <arcticairstoreshop.site>, and <arcticairstores.site> domain names are registered with Nics Telekomunikasyon A.S. and that Respondent is the current registrant of the names. Nics Telekomunikasyon A.S. has verified that Respondent is bound by the Nics Telekomunikasyon A.S. 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 July 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 29, 2019 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@shopsarcticairstoress.site, postmaster@shoparcticairstores.site, postmaster@arcticairstoress.site, postmaster@arcticairstoreshop.site, postmaster@arcticairstores.site. Also on July 9, 2019, 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 August 3, 2019, 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 is a United States direct response company founded in 1994 and develops, markets and distributes various consumer goods, including the ARCTIC AIR personal air cooler. Complainant has rights in the ARCTIC AIR mark through its registration of the mark with various trademark authorities including the World Intellectual Property Organization (“WIPO”) (e.g. Reg. No. 1408148, registered March 5, 2018). See Compl. Ex. C. Respondent’s <shopsarcticairstoress.site>, <shoparcticairstores.site>, <arcticairstoress.site>, <arcticairstoreshop.site>, and <arcticairstores.site> domain names are identical or confusingly similar to Complainant’s mark as they each add a descriptive term (“shop,” “store,” “stores,” and/or “storess”).
Respondent has no rights or legitimate interests in the infringing domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent is using the domain names to resolve to a website that purports to be an online store for Complainant’s ARCTIC AIR products. See Compl. Exs. D (Complainant’s website) and F (Respondent’s websites).
Respondent registered and uses the infringing domain names in bad faith. Respondent uses the domain names to pass off as Complainant for commercial gain, thereby disrupting Complainant’s business. See Compl. Exs. D and F. Additionally, it is clear Respondent registered the domain names with actual knowledge of Complainant’s mark due to the infringing content on the websites and the sale of counterfeit versions of Complainant’s products. Id.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain names are each 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
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 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 each of the disputed domain names are confusingly similar to Complainant’s trademark. Cobmplainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain names by merely adding descriptive term (“shop,” “store,” “stores,” and/or “storess”) to the existing mark and adding g TLD “.site.” This is in sufficient to distinguish the disputed domain names from Complainant’s trademark.
As such, the Panel finds that the disputed domain names are confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain names. Respondent has no right, permission or license to register the disputed domain names. Respondent is not commonly known by the disputed domain names. Respondent also does not use the domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent is using the domain names to resolve to a website that purports to be an online store for Complainant’s ARCTIC AIR products. See Compl. Exs. D (Complainant’s website) and F (Respondent’s websites).
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain names.
The Panel further finds that Respondent has engaged in bad faith use and registration of the disputed domain names. Respondent appears to use the domain names to pass itself off as Complainant and sell its products without authorization and for commercial gain, thereby disrupting Complainant’s business. Using a confusingly similar domain name to pass oneself off as a complainant and offer its products without authorization for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Fossil, Inc. v. NAS, FA 92525 (Forum Feb. 23, 2000) (transferring the <fossilwatch.com> domain name from the respondent, a watch dealer not otherwise authorized to sell the complainant’s goods, to the complainant); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant provides screenshots of the resolving webpages associated with the domain names, all of which display the ARCTIC AIR mark along with images of air conditioning products. See Compl. Ex. F. Complainant also provides a screenshot of its own webpage for comparison purposes, which shows that Respondent’s websites use a similar color scheme and contains similar looking photos of air conditioning products. See Compl. Ex. D. Accordingly, the Panel finds that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) & (iv).
Moreover, given the extensive use of the mark and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s rights and interests in and to this trademark and proceeded with actual knowledge of Complainant’s prior rights thereto.
As such, the Panel finds that Respondent has 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 <shopsarcticairstoress.site>, <shoparcticairstores.site>, <arcticairstoress.site>, <arcticairstoreshop.site>, and <arcticairstores.site> domain names be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: August 8, 2019
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