Infineon Technologies AG v. Domain Admin / Whois Privacy Corp.
Claim Number: FA2201001979758
Complainant is Infineon Technologies AG ("Complainant"), represented by Gary J. Nelson of Lewis Roca Rothgerber Christie LLP, California, USA. Respondent is Domain Admin / Whois Privacy Corp. ("Respondent"), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <infineonracewaycycling.com>, registered with Internet Domain Service BS Corp.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 10, 2022; the Forum received payment on January 10, 2022.
On January 11, 2022, Internet Domain Service BS Corp confirmed by email to the Forum that the <infineonracewaycycling.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 January 14, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 3, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@infineonracewaycycling.com. Also on January 14, 2022, the Written Notice of the Complaint, notifying Respondent of the email 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 February 9, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 was formed in 1999 and is engaged in the manufacturing of semiconductors and systems for automotive, industrial, and multimarket sectors, and offering related services. Complainant has subsidiaries, research and development centers, and fabrication sites located throughout the world. Complainant has over 40,000 employees worldwide and annual revenues of about US $8 billion. Complainant has used the INFINEON trademark for many years in connection with its products and services, and owns trademark rights around the world, including longstanding United States trademark registrations for INFINEON in both standard character and design form. For ten years ending in 2012, Complainant was a corporate sponsor of an automobile and motorcycle racecourse located in California, known during that period as Infineon Raceway and subsequently as Sonoma Raceway.
Respondent registered the disputed domain name <infineonracewaycycling.com> via a privacy registration service in September 2021. Complainant states that the domain name is being used to direct Internet users to a website that promotes pornographic content, and provides what it states are representative screenshots of that website. Complainant states further that Respondent is not commonly known by the disputed domain name, is not an authorized vendor or licensee of Complainant, and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <infineonracewaycycling.com> is confusingly similar to its INFINEON mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <infineonracewaycycling.com> incorporates Complainant's registered INFINEON trademark, adding the generic terms "raceway" and "cycling" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Infineon Technologies AG v. Alain Corcos, FA 1846469 (Forum July 11, 2019) (finding <infineonenergy.com> confusingly similar to INFINEON); loanDepot.com, LLC v. Roger Quandt, FA 1936861 (Forum Apr. 15, 2021) (finding <loandepotstadium.com> confusingly similar to LOANDEPOT); Krispy Kreme Doughnuts, Inc. & HDN Development Corp. v. Walter Norton,
D2012-0353 (WIPO Apr. 3, 2012) (finding <krispykremeracing.com> confusingly similar to KRISPY KREME). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. Its sole apparent use has been to direct or redirect users to an otherwise unrelated commercial website promoting adult-oriented content. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Snap Inc. v. Mario E Zugasti, FA 1929617 (Forum Mar. 4, 2021) (finding lack of rights or interests arising from use of domain name to direct users to adult-oriented website); AB Electrolux v. LaLa Du, D2020-0518 (WIPO Apr. 23, 2020) (finding lack of rights or interests arising from use of domain name for adult-oriented, sexual-themed website offering unrelated products for sale).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
The disputed domain name incorporates Complainant's registered mark without authorization, and it is registered in the name of what the Panel infers to be a privacy registration service, presumably to conceal the identity of the beneficial registrant. It is being used to direct or redirect Internet users to a commercial website that promotes adult-oriented content with no apparent relationship to the domain name. Such activity, referred to as "pornosquatting," is indicative of bad faith registration and use. See, e.g., Mayo Foundation for Medical Education & Research v. MAHOLI Vera, FA 1977497 (Forum Jan. 17, 2022) (finding bad faith in similar circumstances); Snap Inc. v. Mario E Zugasti, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <infineonracewaycycling.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 10, 2022
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