Arris Enterprises LLC v. LIUQINGRU
Claim Number: FA2202001985764
Complainant is Arris Enterprises LLC (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is LIUQINGRU (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ruckuswireless.xyz>, registered with Sav.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.
Petter Rindforth as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 24, 2022; the Forum received payment on February 24, 2022.
On February 24, 2022, Sav.com, LLC confirmed by e-mail to the Forum that the <ruckuswireless.xyz> domain name is registered with Sav.com, LLC and that Respondent is the current registrant of the name. Sav.com, LLC has verified that Respondent is bound by the Sav.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 March 2, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 2022 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@ruckuswireless.xyz. Also on March 2, 2022, 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 March 23, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Petter Rindforth 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
The Complainant provides in-home IPTV content over wireless networks. Complainant has rights in the RUCKUS trademark through the registration of the trademark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,408,483, registered Sep. 24, 2013). Respondent’s <ruckuswireless.xyz> domain name is confusingly similar to Complainant’s RUCKUS trademark. Respondent incorporates the trademark in its entirety and adds the generic term “wireless” along with the “.xyz” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <ruckuswireless.xyz> domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the RUCKUS trademark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent has attempted to sell the disputed domain name by resolving to a webpage that offers the domain name for sale.
Respondent registered and used the <ruckuswireless.xyz> domain name in bad faith as Respondent attempts to sell the disputed domain name. Respondent had actual knowledge of Complainant’s rights in the RUCKUS trademark through its use of the mark in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner the following trademark registrations, registered with the United States Patent and Trademark Office (“USPTO”):
No. 4,408,483 RUCKUS (word), registered September 24, 2013 for goods in Intl Class 9;
No. 4,408,484 RUCKUS (word), registered September 24, 2013 for services in Intl Class 38; and
No. 4,408,482 RUCKUS (word), registered September 24, 2013 for services in Intl Class 42.
The <ruckuswireless.xyz> domain name was registered on February 22, 2022.
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 Complainant claims to have rights in the RUCKUS trademark through its registrations with the USPTO. Registration of a trademark with the USPTO is sufficient to demonstrate rights in a trademark per policy ¶ 4(a)(i). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)). Here, Complainant has provided the Panel with copies of its USPTO registrations for the RUCKUS trademark (e.g. Reg. No. 4,408,483, registered Sept. 24, 2013). Therefore, the Panel find that Complainant has rights in the trademark per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <ruckuswireless.xyz> domain name is confusingly similar to Complainant’s RUCKUS trademark. Registration of a domain name that contains a trademark in its entirety and adds a generic term along with a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See 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)). Here, Complainant argues that Respondent incorporates the trademark in its entirety and adds the generic term “wireless” along with the “.xyz” gTLD. Therefore, the Panel find that Respondent’s domain name is confusingly similar to Complainant’s trademark per Policy ¶ 4(a)(i).
Once the Complainant makes a prima facie case in support of its allegations in respect of the second element of the Policy, the burden shifts to the Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”); see also Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Complainant argues that Respondent lacks rights or legitimate interest in the <ruckuswireless.xyz> domain name as Respondent is not commonly known by the disputed domain name, nor has Respondent been given license or consent to use the RUCKUS trademark or register domain names using Complainant’s trademark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s trademark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “LIUQINGRU” and there is no other evidence to suggest that Respondent was authorized to use the RUCKUS trademark or was commonly known by the disputed domain name. Therefore, the Panel find that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant further argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent has attempted to sell the disputed domain name by resolving to a webpage that offers the domain name for sale. Use of a disputed domain name to resolve to a webpage that offers a domain name for sale is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Twentieth Century Fox Film Corporation v. Diego Ossa, FA1501001602016 (Forum Feb. 26, 2015) (“The Resolving parked page advertises the sale of the domain name with the message ‘Would you like to buy this domain?’ The Panel accepts this offer as demonstrative of Respondent’s willingness to sell the disputed domain name, and finds that such behavior provides additional evidence that Respondent lacks rights or legitimate interests in the disputed domain name.”). Here, Complainant provides the Panel with a screenshot of Respondent’s <ruckuswireless.xyz> domain name that shows the domain name for sale on the resolving webpage. Therefore, the Panel agrees with Complainant and find that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
The Complainant argues that Respondent registered and use the <ruckuswireless.xyz> domain name in bad faith as Respondent attempts to sell the disputed domain name. Attempts to sell a disputed domain name may be evidence of bad faith per Policy ¶ 4(b)(i). See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The <directvgo.com> domain name redirects users to a third party website, it first states, via a link, that the <directvgo.com> domain name may be for sale. If the link is clicked, users are redirected to a page that states, “The owner of Directvgo.com has chosen to receive offer inquiries regarding this domain name.” Therefore, the Panel holds that Respondent registered and uses the domain name in bad faith per Policy ¶ 4(b)(i).”). Here, Complainant provides the Panel with a screenshot of Respondent’s <ruckuswireless.xyz> domain name that shows that the domain name for sale on the resolving webpage. Therefore, the Panel find that Respondent registered and use the disputed domain name in bad faith per Policy ¶ 4(b)(i).
Complainant also argues that Respondent had knowledge of Complainant’s rights in the RUCKUS trademark at the time of registering the <ruckuswireless.xyz> domain name. The Panel disregard arguments of bad faith based on constructive notice as UDRP case precedent declines to find bad faith as a result of constructive knowledge. See 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.”). Instead, the Panel choose to determine whether Respondent had actual knowledge of Complainant's rights in the trademark prior to registering the disputed domain name as actual knowledge can adequately demonstrate bad faith under Policy ¶ 4(a)(iii). 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”). To support this assertion, Complainant points to its trademark registrations along with the fact that Respondent impersonates Complainant to further a fraudulent scam. As such, the Panel agree with Complainant’s conclusion, and find that Respondent did have actual knowledge of Complainant’s right in its trademark, which is 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 <ruckuswireless.xyz> domain name be TRANSFERRED from Respondent to Complainant.
Petter Rindforth, Panelist
Dated: March 24, 2022
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