Infineon Technologies AG v. Jiangsu Jiuqing Electronic Technology Co., Ltd / registrant name
Claim Number: FA2008001908737
Complainant is Infineon Technologies AG (“Complainant”), represented by Gary J. Nelson of Lewis Roca Rothgerber Christie LLP, California. Respondent is Jiangsu Jiuqing Electronic Technology Co., Ltd / registrant name (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <infineon1688.com>, registered with DNSPod, Inc..
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 17, 2020; the Forum received payment on August 17, 2020.
On August 18, 2020, DNSPod, Inc. confirmed by e-mail to the Forum that the <infineon1688.com> domain name is registered with DNSPod, Inc. and that Respondent is the current registrant of the name. DNSPod, Inc. has verified that Respondent is bound by the DNSPod, Inc. 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 19, 2020, the Forum served the Complaint and all Annexes, including a Chinese Written Notice of the Complaint, setting a deadline of September 8, 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@infineon1688.com. Also on August 19, 2020, the Chinese 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 14, 2020, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification and, absent a Response, determines that the proceedings will be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <infineon1688.com> domain name is confusingly similar to Complainant’s INFINEON mark.
2. Respondent does not have any rights or legitimate interests in the <infineon1688.com> domain name.
3. Respondent registered and uses the <infineon1688.com> domain name in bad faith.
B. Respondent failed to submit a response in this proceeding.
Complainant manufactures, sells, and services semiconductors and other products in the automotive, industrial, and related sectors. Complainant holds registrations for the INFINEON mark with the United States Patent and Trademark Office (“USPTO”) (Reg. 2,516, 259, registered Dec. 11, 2001) and the State Administration for Industry and Commerce in China (“SAIC”) (Reg. G718087-9, July 12, 2009.)
Respondent registered the <infineon1688.com> domain name on July 8, 2020, and uses it to sell Complainant’s products without authorization.
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 Panel finds that Complainant has rights in the INFINEON mark under Policy ¶ 4(a)(i) through its registration with the USPTO and SAIC. See Kohler Co. v xi long chen, FA 1737910 (Forum Aug. 4, 2017) (determining that “Complainant has rights in the KOHLER mark through registration with USPTO and SAIC.”).
Respondent’s <infineon1688.com> domain name uses Complainant’s INFINEON mark and adds a string of numbers along with the “.com” gTLD. Adding numbers and the “.com” gTLD does not distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. network admin, FA 1622138 (Forum July 11, 2015) (“The addition, deletion, and switching of . . . numbers in domain names do not remove Respondent’s domain names from the realm of confusing similarity in relation to Complainant’s BLOOMBERG mark pursuant to Policy ¶ 4(a)(i).”); see also AOL Inc. v. Morgan, FA 1349260 (Forum Nov. 4, 2010) (concluding that the addition of the generic top-level domain (“gTLD”) “.com” does not distinguish the disputed domain name from the mark). Accordingly, the Panel finds that Respondent’s <infineon1688.com> domain name is confusingly similar to Complainant's INFINEON mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also 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”).
Complainant argues that Respondent lacks rights in the <infineon1688.com> domain name, as Respondent is not commonly known by the disputed domain name, and Complainant has not authorized Respondent to use its INFINEON mark in the disputed domain name. The WHOIS of record identifies Respondent as “Jiangsu Jiuqing Electronic Technology Co. Ltd”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.).
Complainant argues that Respondent is not using the <infineon1688.com> domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Complainant alleges that Respondent uses the disputed domain name to resell Complainant’s products and to assert a false relationship with Complainant. Attempting to pass off as an affiliate of a Complainant in order to sell Complainant’s products without authorization is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business); see also Caterpillar Inc. v. Huth, FA 169056 (Forum Sept. 2, 2003) (“Respondent lacks rights in the disputed domain names because Respondent competes with Complainant by selling Complainant's used parts without a license from Complainant to do so.”). Complainant provides screenshots of the disputed domain name’s resolving website, which falsely purports to be Complainant’s main parts dealer in China, and offers Complainant’s products. The Panel finds that Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <infineon1688.com> domain name in bad faith by disrupting Complainant’s business for commercial gain under Policy ¶¶ 4(b)(iii) and (iv). Attempting to pass off as an affiliate of a complainant to divert internet users to a disputed domain name’s resolving website, where Respondent sells Complainant’s products without authorization, constitutes bad faith disruption for commercial gain under Policy ¶¶ 4(b)(iii) and (iv). Thus, the Panel finds bad faith under Policy ¶¶ 4(b)(iii) and (iv). See G.D. Searle & Co. v. Celebrex Cox-2 Vioxx.com, FA 124508 (Forum Oct. 16, 2002) (“Unauthorized use of Complainant’s CELEBREX mark to sell Complainant’s products represents bad faith use under Policy ¶ 4(b)(iii).”); see also The Prudential Insurance Company of America v. Henrique Bryan Souza / DATAMIX ENSINO DE INFORMATICA, FA 1718308 (Forum Apr. 3, 2017) (finding bad faith where the respondent used the disputed domain name to resolve to a website upon which the respondent imitated the complainant’s mark, logo, and color scheme to create a “strikingly similar” website); Fanuc Ltd v. Mach. Control Servs., FA 93667 (Forum Mar. 13, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by creating a likelihood of confusion with the complainant's mark by using a domain name identical to the complainant’s mark to sell the complainant’s products).
The Panel finds that Complainant has satisfied 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 <infineon1688.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: September 15, 2020
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