C&K Components, LLC v. yanhongchen / dongguanshiyanghanshiyeyouxiangongsi
Claim Number: FA2110001967820
Complainant is C&K Components, LLC (“Complainant”), represented by Paul J. Kennedy of Troutman Pepper Hamilton Sanders LLP, Pennsylvania, USA. Respondent is yanhongchen / dongguanshiyanghanshiyeyouxiangongsi (“Respondent”), 中国.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ck-switch.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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 5, 2021; the Forum received payment on October 5, 2021. The Complaint was received in English.
On October 13, 2021, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <ck-switch.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 October 18, 2021, the Forum served the English language Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of November 8, 2021, 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@ck-switch.com. Also on October 18, 2021, the Chinese and English 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 November 15, 2021, 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.
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 circumstances of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
Complainant, C&K Components, LLC, designs, manufactures, and distributes electromechanical switches. Complainant has rights in the C & K mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,254,380, registered Oct. 18, 1983). Respondent’s <ck-switch.com> domain name is confusingly similar to Complainant’s C & K mark as it merely removes the ampersand in the mark and adds a hyphen, the term “switch,” and the “.com” generic top-level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <ck-switch.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not permitted Respondent to use the C & K mark. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the domain to offer competing goods for sale.
Respondent registered and uses the <ck-switch.com> domain name in bad faith. Respondent uses the disputed domain name to divert users to its own website where it offers competing goods for sale. Additionally, Respondent had actual knowledge of Complainant’s rights in the C & K mark based on the use of the mark to compete with Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is C&K Components, LLC (“Complainant”), of Waltham, MA, USA. Complainant is the owner of domestic and international registrations for the mark C&K, which it has used continuously since at least as early as 1957 in connection with its production and provision of electromechanical switches as well as related goods and services. Complainant’s mark is registered in China as well, and Complainant owns registrations for numerous C&K formative domain names including <ckswitches.com> and <ckswitches.cn>
Respondent is yanhongchen / dongguanshiyanghanshiyeyouxiangongsi (“Respondent”), 中国, of Dongguan City, China. Respondent’s registrar’s address is listed as Beijing, China. The Panel notes that the disputed domain name was registered on or about March 12, 2011.
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 C & K mark based on registration with the USPTO (e.g., Reg. No. 1,254,380, registered Oct. 18, 1983). 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)). The Panel here finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <ck-switch.com> domain name is confusingly similar to Complainant’s C & K mark as it merely removes the ampersand in the mark and adds a hyphen, the term “switch,” and the “.com” gTLD. The removal or addition of punctuation from a mark, along with the addition of a descriptive term and gTLD, is not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Russell & Bromley Limited v. KIM H. SUK, FA 1729773 (Forum June 12, 2017) (finding respondent’s <russellandbromley.com> domain name identical to complainant’s RUSSEL & BROMLEY mark, because “[t]he ampersand is a prohibited character in a domain name so there is no difference between the ampersand (in the mark) and the word ‘and’ (in the domain name)”); see also Eastman Chem. Co. v. Patel, FA 524752 (Forum Sept. 7, 2005) (“Therefore, the Panel concludes that the addition of a term descriptive of Complainant’s business, the addition of a hyphen, and the addition of the gTLD ‘.com’ are insufficient to distinguish Respondent’s domain name from Complainant’s mark.”). The Panel here finds that the disputed domain name is confusingly similar to the C & K mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
Rights or Legitimate Interests
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 <ck-switch.com> domain name because Respondent is not commonly known by the disputed domain name and Complainant has not permitted Respondent to use the C & K 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 permission or authorization to use a mark further evinces that a respondent is not commonly known by the disputed domain name. 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.). Here, the WHOIS information lists “yanhongchen / dongguanshiyanghanshiyeyouxiangongsi” as the registrant and there is no evidence provided to indicate Complainant ever authorized Respondent to use the C & K 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 for any bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the domain to offer competing goods for sale. Using a disputed domain name to offer goods or services that directly compete with those offered by a complainant is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Here, Complainant provides screenshots of the resolving website for the disputed domain name which appears to offer competing electromechanical switches for sale. 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 with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues Respondent registered and uses the <ck-switch.com> domain name in bad faith because Respondent uses the disputed domain name to divert users to its own website where it offers competing goods for sale. Using a disputed domain name to redirect users to a respondent’s own website where it offers competing goods or services for sale can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 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); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). The Panel here again notes that Complainant provides screenshots showing Respondent uses the disputed domain name to offer products that directly compete with those offered by Complainant. The Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv).
Additionally, Complainant contends that Respondent had actual knowledge of Complainant’s rights in the C & K mark based on the use of the mark to compete with Complainant. Per Policy ¶ 4(a)(iii), actual knowledge of a complainant’s trademark rights is sufficient to establish bad faith and can be demonstrated by the use the respondent makes of the domain name. See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”); see also Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”). The Panel here finds that Respondent had actual knowledge of Complainant’s rights in the C & K mark thus acting in bad faith per Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
DECISION
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <ck-switch.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: November 30, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page