CommScope, Inc. of North Carolina v. ge rong kai
Claim Number: FA2211002020197
Complainant is CommScope, Inc. of North Carolina (“Complainant”), represented by William Schultz of Merchant & Gould, P.C., Minnesota, USA. Respondent is ge rong kai (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <systimax.info>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on November 14, 2022; Forum received payment on November 14, 2022.
On November 15, 2022, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to Forum that the <systimax.info> domain name(s) is/are registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the names. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 November 15, 2022, Forum served the Complaint and all Annexes, including a Chinese Written Notice of the Complaint, setting a deadline of December 5, 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@systimax.info. Also on November 15, 2022, the Chinese 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 9, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
After considering the circumstances of this proceeding, the Panel finds that Respondent is likely conversant in the English language. Pursuant to UDRP Rule 11(a), the Panel determines that this proceeding will conducted be in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <systimax.info> domain name is confusingly similar to Complainant’s SYSTIMAX mark.
2. Respondent does not have any rights or legitimate interests in the <systimax.info> domain name.
3. Respondent registered and uses the <systimax.info> domain name in bad faith.
B. Respondent did not file a Response.
Complainant offers communications products and services and holds a registration for the SYSTIMAX mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,082,391 registered January 10, 2021).
Respondent registered the <systimax.info> domain name on November 8, 2022, and uses it to resolve to an inactive webpage.
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 Panel finds that Complainant has rights in the SYSTIMAX mark based on the registration with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”)
Respondent’s <systimax.info> domain name uses Complainant’s SYSTIMAX mark and merely adds the “.info” gTLD. The addition of a gTLD fails to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Therefore, the Panel finds that Respondent’s <systimax.info> domain name is confusingly similar to Complainant’s SYSTIMAX mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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”).
Complainant contends that Respondent lacks rights and legitimate interests in the <systimax.info> domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the SYSTIMAX mark. The WHOIS information for the disputed domain name lists the registrant as “ge rong kai.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus Respondent has no rights 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).
Complainant argues that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use as the disputed domain name resolves to a blank page. Inactively holding a domain name fails to establish a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”) Complainant provides a screenshot showing that the disputed domain name resolves to an inactive webpage. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent’s inactive holding of the <systimax.info> domain name is evidence of bad faith registration and use. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See State Farm Mutual Automobile Insurance Company v. Dr. Keenan Cofield, FA 1799574 (Forum Sep. 10, 2018) (finding bad faith under Policy ¶ 4(a)(iii) where “the domain name initially resolved to a web page with a “website coming soon” message, and now resolves to an error page with no content.”)
Complainant also argues that Respondent had knowledge of Complainant’s rights in the SYSTIMAX mark when it registered the <systimax.info> domain name, highlighting its trademark registrations as well as its commercial presence and reputation. The Panel agrees and finds further bad faith under Policy ¶ 4(a)(iii). 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).”) see also iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 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”).
The Panel finds that Complainant has satisfied 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 <systimax.info> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 10, 2022
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