Qualcomm Incorporated v. zambak kara
Claim Number: FA2204001992093
Complainant is Qualcomm Incorporated (“Complainant”), represented by Diana S. Bae of ArentFox Schiff LLP, District of Columbia, USA. Respondent is zambak kara (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <snapdragonsound.com>, registered with Dynadot, 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.
The Honorable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 12, 2022; the Forum received payment on April 12, 2022.
On April 13, 2022, Dynadot, LLC confirmed by e-mail to the Forum that the <snapdragonsound.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 April 14, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 4, 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@snapdragonsound.com. Also on April 14, 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 May 11, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honorable Neil Anthony Brown QC 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 made the following contentions.
Complainant operates in the wireless technologies industry. Complainant has rights in the SNAPDRAGON mark with the United States Patent and Trademark Office “USPTO” (eg. Reg. No. 3,894,134, registered Dec. 21, 2010). See Amend. Compl. Ex. A. Respondent’s <snapdragonsound.com> domain name is identical or confusingly similar to Complainant’s SNAPDRAGON mark as it incorporates the mark in its entirety and adds the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <snapdragonsound.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its SNAPDRAGON mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use. Instead, Respondent’s disputed domain name resolves to a website offering the disputed domain name for sale.
Respondent registered and uses the <snapdragonsound.com> domain name in bad faith. Respondent inactively holds the disputed domain name. Respondent is offering the resolving website for sale. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the SNAPDRAGON mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that operates in the wireless technologies industry.
2. Complainant has established its trademark rights in the SNAPDRAGON mark with the United States Patent and Trademark Office “USPTO” (eg. Reg. No. 3,894,134, registered Dec. 21, 2010).
3. Respondent registered the <snapdragonsound.com> domain name on October 5, 2021.
4. Respondent has caused the disputed domain name to resolve to a website offering the domain name for sale.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the SNAPDRAGON mark with the USPTO (eg. Reg. No. 3,894,134, registered Dec. 21, 2010). See Amend. Compl. Ex. A. Registration with the USPTO is generally sufficient in demonstrating rights in the mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Therefore, the Panel finds Complainant has established its trademark rights in the mark under Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s SNAPDRAGON mark. Complainant argues that Respondent’s <snapdragonsound.com> domain name is confusingly similar to Complainant’s SNAPDRAGON mark. Under Policy ¶ 4(a)(i), a domain name is generally considered confusingly similar to the mark it incorporates where the registrant adds to the trademark a word describing the Complainant’s products along with a gTLD. See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The disputed domain name incorporates the SNAPDRAGON mark in its entirety and adds the word “sound”, which describes the Complainant’s products as it operates in the wireless technologies industry. In addition, the disputed domain name adds the “.com” gTLD. As the Panel agrees, it finds Respondent’s domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established 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”).
(a) Respondent has chosen to take Complainant’s SNAPDRAGON mark and to use it in its domain name, adding the generic word “sound” to the mark, which does not negate the confusing similarity between the domain name and the trademark;
(b) Respondent registered the <snapdragonsound.com> domain name on October 5, 2021;
(c) Respondent has caused the disputed domain name to resolve to a website offering the domain name for sale;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent is not commonly known by the <snapdragonsound.com> domain name, nor has Complainant authorized or licensed Respondent to use its SNAPDRAGON mark in the disputed domain name. Under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name, while a lack of evidence demonstrating otherwise may affirm a Complainant’s assertion that it never authorized or licensed Respondent to use its mark in 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.). The WHOIS record identifies Respondent as “zambak kara,” and nothing in the record rebuts Complainant’s assertion that it never authorized or licensed Respondent to use its SNAPDRAGON mark in the disputed domain name. See Registrar Verification Email. Therefore, as the Panel agrees, it finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent is not using the <snapdragonsound.com> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use as Respondent’s disputed domain name resolves to a webpage offering the disputed domain name for sale to the general public for profit. Under Policy ¶¶ 4(c)(i) and (iii), offering a disputed domain name for sale is generally not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See AOL Inc. v. YourJungle Privacy Protection Service aka Whois Agent, FA1312001533324 (Forum Jan. 17, 2014) (“Respondent has offered the <aoljobsweek.com> domain name for sale to the general public, which demonstrates that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). Complainant provides screenshots of the disputed domain name’s resolving website, which offers the disputed domain name for sale to the general public for $149,500. See Amend. Compl. Ex. D. Therefore, as the Panel agrees, it finds such evidence of the offer to demonstrate further a lack of rights and legitimate interests on the part of Respondent. The Panel also finds Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered and uses the <snapdragonsound.com> domain name in bad faith by offering the disputed domain name for sale for a profit on the website to which it resolves. Under Policy ¶ 4(b)(i), if Respondent has offered the domain for sale to the public, then the Panel may find evidence of such an offer to indicate bad faith registration and use if the Panel also finds that Respondent primarily intended that such an offer be made when registering the domain name. See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”). The Panel recalls Complainant’s screenshots of the disputed domain name’s resolving website, which offers the disputed domain name for sale to the general public for profit. See Amend. Compl. Ex. D. Therefore, as the Panel agrees, it finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).
Secondly, Complainant argues that Respondent registered and uses the <snapdragonsound.com> domain name in bad faith by inactively holding the disputed domain name’s resolving website. Inactively holding a disputed domain name may be considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii) subject to taking into account all the circumstances. See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). Complainant provides screenshots of the disputed domain name’s resolving website, which resolves to an inactive webpage. See Amend. Compl. Ex. D. Therefore, as the Panel agrees, it finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Thirdly, Complainant argues that Respondent registered the <snapdragonsound.com> domain name with bad faith actual knowledge of Complainant’s rights in the SNAPDRAGON mark. Under Policy ¶ 4(a)(iii), actual knowledge is generally sufficient in demonstrating bad faith, and may be established through incorporation of a well-known/registered mark into a domain name. See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”). The Panel recalls that Complainant’s registered SNAPDRAGON mark is incorporated into the disputed domain name. Therefore, as the Panel agrees, it finds Respondent had actual knowledge of Complainant’s rights in the mark under Policy ¶ 4(a)(iii).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <snapdragonsound.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown QC
Panelist
Dated: May 12, 2022
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