Knowles Electronics, LLC v. zhao du
Claim Number: FA2011001921904
Complainant is Knowles Electronics, LLC (“Complainant”), represented by Gregory J. Chinlund of Marshall, Gerstein & Borun LLP, Illinois, USA. Respondent is zhao du (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <knowleselectronics.com>, registered with GoDaddy.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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 24, 2020; the Forum received payment on November 24, 2020.
On November 25, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <knowleselectronics.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 December 1, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 21, 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@knowleselectronics.com. Also, on December 1, 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 December 23, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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, Knowles Electronics, LLC, designs and manufactures devices such as hearing aid components, microphones, and capacitors. Complainant has rights in the KNOWLES mark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,599,909, registered on September 9, 2014). Respondent’s <knowleselectronics.com> domain name is confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s KNOWLES mark and simply adds the descriptive term “electronics” and the “.com” generic top-level domain (“gTLD”) to form the disputed domain name.
Respondent does not have rights or legitimate interests in the <knowleselectronics.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use the KNOWLES mark. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain to redirect users to adult-oriented material.
Respondent registered and uses the <knowleselectronics.com> domain name in bad faith. Respondent attempts to attract users for commercial gain by capitalizing on users’ confusion and diverting users searching for Complainant’s business to Respondent’s own website. Additionally, Respondent has constructive and/or actual knowledge of Complainant’s rights in the KNOWLES mark based on Complainant’s long-term use of the mark, its distinctiveness, and the incorporation of the entire mark in the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the disputed domain name was registered on October 13, 2020.
Complainant is Knowles Electronics, LLC (“Complainant”), of Itasca, IL, USA. Complainant is the owner of the domestic registration for the mark KNOWLES which it has continuously used since at least as early as 1955 in connection with its manufacturing and distribution of precision electronic devices such as hearing aid components, microphones, and capacitors. Complainant has also used its website, <knowles.com> since at least as early as 2000 to conduct business on the web.
Respondent is identified as Zhao Du (“Respondent”), of Anhui, China. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA.
The Panel notes that the disputed domain name was registered on or about October 13, 2020.
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”).
Complainant asserts rights in the KNOWLES mark based on registration with the USPTO (e.g., Reg. No. 4,599,909, registered on September 9, 2014). Registration of a mark with the USPTO is a valid showing of rights in a mark. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). As Complainant provides evidence of registration of the KNOWLES mark with the USPTO, the Panel here finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <knowleselectronics.com> domain name is confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s KNOWLES mark and simply adds the descriptive term “electronics” and the “.com” gTLD. The addition of a descriptive term and gTLD to a mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i).”); see also YETI Coolers, LLC v. Randall Bearden, FA 16060016880755 (Forum Aug. 10, 2016) (finding that the words “powder coating” in the <yetipowdercoating.com> domain name are “merely explicative and directly refer to some of the services rendered by the Complainant” and, therefore, create an “irrefutable confusing similarity” to complainant’s YETI mark). Complainant notes the disputed domain name is particularly confusing because it is identical to Complainant’s trade name and the term “electronics” directly refers to the products Complainant sells. The Panel here finds that the disputed domain name is confusingly similar to the KNOWLES mark under Policy ¶ 4(a)(i).
Respondent raises no contentions regarding Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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”). The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <knowleselectronics.com> domain name because Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use the KNOWLES mark. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization to use a mark constitutes a further showing that a respondent lacks rights in a mark. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). Here, the WHOIS information lists “zhao du” as the registrant and no information refutes Complainant’s assertion that Respondent has never received authorization to use the KNOWLES mark in any way. The Panel here finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use and instead uses the domain to redirect users to adult-oriented material. The use of a disputed domain name to redirect users to a website featuring adult-oriented material does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”). Complainant provides screenshots of the resolving webpages for the disputed domain name that features various adult-oriented images and material that has no connection with Complainant’s products. The Panel here finds that Respondent is not using the domain name for 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).
Respondent raises no contentions regarding Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent registered and uses the <knowleselectronics.com> domain name in bad faith because Respondent attempts to attract users for commercial gain by capitalizing on users’ confusion and diverting users searching for Complainant’s business to Respondent’s own website. The use of a disputed domain name to confuse users as to the source or affiliation of the domain with a complainant and to divert users away from a complainant’s website and to a respondent’s own website is evidence of bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”).
Here Complainant provides screenshots of some of Respondent’s resolving pages and contends that the harmful confusion and diversion is exacerbated by the fact that users searching for Complainant’s business are unwittingly taken to a website featuring adult-oriented images. The Panel here finds that Respondent’s actions support a finding of bad faith registration and use under Policy ¶ 4(b)(iv).
Respondent raises no contentions regarding Policy ¶ 4(a)(iii).
The Complainant has proven this element.
DECISION
As the Complainant has established all three elements required under the applicable ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <knowleselectronics.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 7, 2021
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