Plantronics, Inc. v. Aykut Saglam
Claim Number: FA2008001907681
Complainant is Plantronics, Inc. (“Complainant”), represented by John C. Cain of Fleckman & McGlynn, PLLC, Texas, USA. Respondent is Aykut Saglam (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <polytr.com>, registered with Domain.com, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 7, 2020; the Forum received payment on August 7, 2020.
On August 10, 2020, Domain.com, LLC confirmed by e-mail to the Forum that the <polytr.com> domain name is registered with Domain.com, LLC and that Respondent is the current registrant of the name. Domain.com, LLC has verified that Respondent is bound by the Domain.com, LLC 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 10, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 31, 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@polytr.com. Also on August 10, 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 September 1, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a headsets and communications equipment manufacturing company. Since at least as early as 1962, Complainant has been making quality headsets and communications equipment known for superior audio quality while being lightweight. Since the 1960’s, Complainant has been the sole provider of headsets to the Federal Aviation Agency (FAA), and Complainant’s headsets were used by NASA astronauts during the Apollo missions, including being used by Neil Armstrong on the moon landing on July 20, 1969. Complainant continues to be known as a leader in headsets and wired and wireless communication devices for almost 60 years. A separate company, Polycom, Inc. has offered quality tele-presence, video, and voice equipment, applications, and services under the POLYCOM mark since at least as early as 1992. In 2018, Polycom was acquired by Complainant and is now a wholly-owned subsidiary of Complainant. Since the acquisition of Polycom in 2018, Complainant has continued to use the POLYCOM mark for the aforementioned goods and services. And, in 2019, Complainant rebranded all its products and services under the POLY brand and made the domain name <www.poly.com> its primary company website to which all other prior domains now redirect. Complainant asserts rights in the POLYCOM mark through its registration of the mark with multiple trademark agencies, including in the United States in 1993. Complainant also has rights in the POLY mark through its registration with multiple trademark agencies, including an application filed in the United States on March 17, 2019.
Complainant alleges that the disputed domain name is confusingly similar to its mark as it incorporates the POLYCOM mark in its entirety and merely adds the term “TR” (the country code for Turkey) between the elements “poly” and “com.”
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name nor has complainant authorized Respondent’s use of the POLYCOM mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to pose as Complainant by copying Complainant’s website content to sell unauthorized or counterfeit products.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent intentionally targeted the POLYCOM mark to disrupt Complainant’s business for commercial gain. Respondent also had knowledge of Complainant’s rights in POLYCOM mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the marks POLYCOM and POLY, with rights dating back, respectively, to 1993 and March 17, 2019.
The disputed domain name was registered on March 22, 2019.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website is a copy of an older version of Complainant’s legitimate website. It displays Complainant’s mark and logo and purports to sell unauthorized or counterfeit versions of Complainant’s products.
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”).
The disputed domain name incorporates the dominant portion of Complainant’s POLYCOM mark, merely adding the descriptive term “TR”, the geographic code for Turkey. This is not sufficient to avoid a finding of confusing similarity under the Policy. See The Toronto-Dominion Bank v. Gerard Brady / Melcrest Ltd, FA 1579154 (Forum Oct. 21, 2014) (“Complainant claims the <tdcanadabank.com> domain name takes the mark and interjects the word ‘Canada’, which is the country where the TD BANK brand was born and grew to popularity. The Panel finds that merely adding the top level domain ‘.com’ and the geographically descriptive word ‘Canada’ to the TD BANK mark is insufficient to avoid Policy ¶ 4(a)(i) confusing similarity"); see also Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).).
Further, the disputed domain name incorporates Complainant’s POLY mark in its entirety, merely adding the geographic descriptor TR. The relevant date for the mark POLY is the filing date, see Lenovo (Beijing) Limited Corporation China v. jeonggon seo, FA 1591638 (Forum Jan. 16, 2015) (finding Complainant has rights in the LENOVO mark dating back to the February 20, 2003 filing date with the USPTO as the trademark application was ultimately successful); see also Hershey Co. v. Reaves, FA 967818 (Forum June 8, 2007) (finding that the complainant’s rights in the KISSES trademark through registration of the mark with the USPTO “date back to the filing date of the trademark application and predate [the] respondent’s registration”). As already noted, addition of a geographic descriptor to a mark is not sufficient to avoid a finding of confusing similarity under the Policy.
For the reasons given above, the Panel finds that the disputed domain name is confusingly similar to Complainant’s marks per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can be used to determine if a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information for the disputed domain name shows that the registrant’s name is “Aykut Saglam”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to pass off as Complainant to offer unauthorized or counterfeit versions of Complainant’s products. Where a respondent’s use of a disputed domain name is to offer for sale unauthorized goods, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Fadal Engineering, LLC v. DANIEL STRIZICH,INDEPENDENT TECHNOLOGY SERVICE INC, FA 1581942 (Forum Nov. 13, 2014) (finding that Respondent’s use of the disputed domain to sell products related to Complainant without authorization “does not amount to a bona fide offering of goods or services under policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Thus, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s marks. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to pass off as Complainant in order to compete with Complainant’s business. Use of a domain name to create a false impression of affiliation with a complainant in order to compete with and disrupt the complainant’s business is behavior indicative of bad faith registration and use per Policy ¶ 4(b)(iv). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”); see also Hunter Fan Co. v. MSS, FA 98067 (Forum Aug. 23, 2001) (finding bad faith where the respondent used the disputed domain name to sell the complainant’s products without permission and mislead Internet users by implying that the respondent was affiliated with the complainant); see also 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). The Panel therefore finds that Respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and logo, and pictures of Complainant’s products. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <polytr.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 2, 2020
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