LeBus International, Inc. & LeBus International Engineers GmbH v. yongzhang / Shijiazhuang army heavy machinery manufacturing co. LTD
Claim Number: FA2007001904116
Complainant is LeBus International, Inc. & LeBus International Engineers GmbH (“Complainants”), represented by Mark Kachigian of Head, Johnson, Kachigian, & Wilkinson, P.C., Texas, USA. Respondent is yongzhang / Shijiazhuang army heavy machinery manufacturing co.LTD (“Respondent”), 中国.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lebus-china.com>, registered with Xin Net Technology Corporation.
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.
Debrett G. Lyons as Panelist.
Complainants submitted a Complaint to the Forum electronically on July 14, 2020; the Forum received payment on July 14, 2020. The Complaint was received in English.
On July 15, 2020, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <lebus-china.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 21, 2020, the Forum served the English language Complaint and all Annexes, including an English and Chinese language Written Notice of the Complaint, setting a deadline of August 10, 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@lebus-china.com. Also on July 21, 2020, the English and 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 August 13, 2020, pursuant to Complainants’ request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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.
Complainants request that the domain name be transferred from Respondent to Complainants (not identifying which complainant should be the transferee).
A. Complainants
Complainants asserts trademark rights in LEBUS which is registered with several national trademark authorities. Complainants submit that the disputed domain name is confusingly similar to the trademark.
Complainants allege that Respondent has no rights or legitimate interests in the disputed domain name which was registered in 2014.
Complainants allege that Respondent registered the disputed domain name in bad faith long after Complainants had established trademark rights; further, that the use has been in bad faith since the domain name resolves to a webpage offering competitive products to those sold by Complainants under the trademark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Paragraph 15(a) of the Rules to the Policy 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 Complainants to prove each of the following three elements to obtain an order that the domain name should be transferred:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which Complainants have 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 Complaint states that “there can be no doubt that the [goods] offered by Respondent through the <lebus-china.com> and <lebus.cn> domain names are identical, complimentary (sic) or highly related and competitive to those goods and services identified and encompassed within Complainant’s [trademark] registrations …”
The Panel notes that the reference to <lebus.cn> is a reference to a second domain name listed in the Complainant as filed but removed from the Amended Complaint in consequence of the Forum’s July 15, 2020 deficiency letter which advised Complainants that the Forum is not authorized to handle .cn disputes.
The Panel also notes two procedural matters arising under the Policy. The first concerns the fact that there are two named Complainants in this matter: LeBus International, Inc. and LeBus International Engineers GmbH. Paragraph 3(a) of the Rules provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “[t]he Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.” The Complaint states that LeBus International Engineers GmbH is a subsidiary of LeBus International, Inc. Generally, that relationship is enough to satisfy Supplemental Rule 1(e).
The second is that under Rule 11(a), Chinese is the language of these Administrative Proceedings since it is the language of the registration agreement. The Forum’s aforementioned July 15, 2020 deficiency letter gave Complainants the option to translate the Complaint and Table of Contents into Chinese or modify the Complaint to explain why Respondent is capable of understanding English. An Amended Complaint was filed in English which stated that “Respondent is capable of understanding English as Respondent created and maintained an infringing English language website on the disputed domain name and because the Respondent communicated with the Complainant in English before filing of the Complaint.”
The single factual finding which is determinative of this matter is that the Complaint contains no evidence of use of the domain name. That omission lends no support for the argument presented under Rule 11(a) that Respondent can understand English because it maintained an English language website (the Panel notes also in this regard that the alleged pre-Complaint correspondence between the parties is missing). However, the Panel finds the procedural question of whether the Complaint should be re-filed in the Chinese language otiose since a translated Complaint would still not give support to the assertion of bad faith use based on alleged competitive use of the disputed domain name. Under paragraph 4(a)(iii) of the Policy a complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith. An isolated, otherwise unexplained paragraph in the Complaint states: “Respondent had a website containing infringing content which was taken down following Complainant’s web host.” The Panel cannot fully understand what is meant by that statement; it is of no assistance to the Complainants.
The Panel has a discretion to make limited enquiries of its own. It found that the domain name does not resolve to any website and appears not to be in use. There is no obvious sign of vestigial use. The Panel has gone further. Although no longer the subject of this Complaint, the domain name <lebus.cn> does resolve to a developed website but it is wholly in Chinese and the Panel cannot draw any reliable inferences about this case based on it.
Given that the disputed domain name was registered in 2014 and has not been contested sooner, no inferences can be drawn about bad faith use which would satisfy the civil standard of proof. Finally, none of the guideline scenarios found in paragraph 4(b) of the Policy have any obvious application in the absence of evidence of use of the disputed domain name.
The Panel finds that the Complaint has failed to satisfy the third element of the Policy.
Having failed to establish one of the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <lebus-china.com> domain name REMAIN WITH Respondent.
Debrett G. Lyons, Panelist
August 17, 2020
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