Fluke Corporation v. jiruiElectronic technology Shanghai limited / tian minglei
Claim Number: FA2004001894209
Complainant is Fluke Corporation (“Complainant”), represented by Lindsay M.R. Jones of Merchant & Gould, P.C., Minnesota, United States of America (“United States”). Respondent is jiruiElectronic technology Shanghai limited / tian minglei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <fluke-china.com> (the “disputed domain name”), registered with Shanghai Meicheng Technology Information Development Co., Ltd. (the “Registrar”).
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 29, 2020; the Forum received payment on April 29, 2020.
On June 2, 2020, Shanghai Meicheng Technology Information Development Co., Ltd. confirmed by e-mail to the Forum that the <fluke-china.com> disputed domain name is registered with Shanghai Meicheng Technology Information Development Co., Ltd. and that Respondent is the current registrant of the disputed domain name. Shanghai Meicheng Technology Information Development Co., Ltd. has verified that Respondent is bound by the Shanghai Meicheng Technology Information Development 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 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 22, 2020 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@fluke-china.com. Also on June 2, 2020, 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 June 29, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is an international manufacturer of industrial test, measurement, and diagnostic equipment, including electronic test equipment. Complainant has rights in its FLUKE mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,148,673, registered Apr. 7, 1998) (the “FLUKE Mark”).
The disputed domain name is confusingly similar to Complainant’s mark, as Respondent merely adds to the FLUKE Mark the geographic term “china,” as well as the “.com” generic top-level domain (“gTLD”), Respondent has no rights or legitimate interests in the disputed domain name, and Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds valid trademark rights in the FLUKE Mark. The Disputed Domain Name is confusingly similar to Complainant’s FLUKE Mark. Further, Complainant has established that Respondent lacks rights or legitimate interests in the use of the disputed domain name and that Respondent registered and is using the disputed domain name in bad faith.
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 determines that the proceeding should be in English.
The Panel finds that Complainant has valid rights in its FLUKE Mark through registration with the USPTO (e.g., Reg. No. 2,148,673, registered Apr. 7, 1998). Registration with the USPTO is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Next, the Panel concludes that the disputed domain name is confusingly similar to the FLUKE Mark, as Respondent merely adds the geographic term “china,” as well as the “.com” gTLD. The fact that there is a hyphen and geographic terms added to the disputed domain name does not prevent a finding of confusing similarity under Policy ¶ 4(a)(i). See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”).
Accordingly, the Panel finds that Policy ¶4(a)(i) has been established by Complainant.
The Panel finds that Respondent holds no rights or legitimate interests in the disputed domain name. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
As Respondent did not respond to the Complaint, Respondent cannot have carried its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name. The Panel notes that, given the facts here, Respondent would have been hard-pressed to furnish availing arguments, had it chosen to respond:
Specifically, Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the FLUKE Mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant nor has Complainant authorized Respondent to use the FLUKE Mark in any way.
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel concludes that Respondent has registered and is using the disputed domain name in bad faith because Respondent is attempting to attract, for commercial gain, Internet users to Respondent’s own website by creating a likelihood of confusion with Complainant's FLUKE Mark as to the source, sponsorship, affiliation, or endorsement of the content thereon. Bad faith under Policy ¶ 4(b)(iv) can be found where a respondent uses a confusingly similar domain name to falsely indicate an association with a complainant. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
Here, Respondent created a likelihood of confusion with Complainant and its FLUKE Mark by registering a disputed domain name that incorporates in its entirety Complainant’s FLUKE Mark. In addition, Respondent attempts to disrupt Complainant’s business by offering competing goods and copying the layout and products of Complainant on its website. See ZIH Corp. v. ou yang lin q, FA1761403 (Forum December 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products).
Further, Complainant provides screenshots of the disputed domain name’s resolving webpage, which show a site that contains Complainant’s mark and products that directly compete with Complainant’s legitimate products, an additional indication of bad faith use.
Accordingly, the Panel finds that Policy ¶4(a)(iii) has been established by Complainant.
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <fluke-china.com> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: July 2, 2020
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