DECISION

 

Titan Manufacturing and Distributing, Inc. v. guo tian tian

Claim Number: FA2407002106796

 

PARTIES

Complainant is Titan Manufacturing and Distributing, Inc. ("Complainant"), represented by Gregory J. Krabacher of Epstein Becker & Green, P.C., Ohio, USA. Respondent is guo tian tian ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <titan-attachments.com>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).

 

PANEL

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.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on July 17, 2024; Forum received payment on July 17, 2024.

 

On July 19, 2024, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to Forum that the <titan-attachments.com> domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. 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 July 24, 2024, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of August 13, 2024 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@titan-attachments.com. Also on July 24, 2024, the Chinese and English 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 in Chinese and English.

 

On August 14, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS

Notwithstanding that the relevant Registration Agreement is written in Chinese, 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 to some degree conversant and proficient in the English language. Respondent's domain name targets an English language trademark owned and used by Complainant who is a United States resident entity. The at-issue domain name is comprised of English terms. Further, the domain name addresses a website exclusively having English content. Likewise, the Amazon Associates Program Operating Agreement and Polices to which Respondent purports to be a participant is also in English. Complainant would thus be unduly burdened if the proceeding were to continue in Chinese as there would be no cognizable benefit to Respondent, the dispute resolution provider, or the Panel. Therefore, after considering the circumstances of the present case including the proper service of a Chinese and English Written Notice of the Complaint upon Respondent and Respondent's failure to respond, the Panel finds that the proceeding should be in English.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends in part as follows:

 

Since at least as early as 2014, Titan has continuously used the TITAN marks in connection with the sale of a variety of products across various commercial channels. In particular, Titan has used its TITAN ATTACHMENT mark in connection with the sale of its agricultural and farming equipment such as tractor implements, pallet forks, skid steer loader attachments, mowers, and other attachments for farming and equipment needs. Titan is an online e-commerce retailer selling its products from websites under its own control, including its Titan Attachments website.

 

Complainant owns numerous USPTO trademark registrations for marks containing the term TITAN including registrations for TITAN ATTACHMENTS.

 

Respondent's at-issue domain name is confusingly similar to a trademark in which Complainant has rights as Respondent's minute addition of a hyphen and the generic top-level domain name ".com" does nothing to alleviate the likelihood of confusion with Complainant's TITAN ATTACHMENT mark.

 

The at-issue domain name resolves to a website in which the TITAN marks are used identically, that is, without the hyphen. In fact, even though Respondent is not affiliated with or authorized by Complainant Titan to sell or market Titan's products, the Respondent's website impersonates Titan by displaying pictures of Titan products that, upon information and belief, are illegally copied from Titan's website, and which even display the registered Titan logo. To further its fraudulent scheme, Respondent falsely portrays its website as the "USA Official Store" and links to Complaint's actual product pages on Amazon, a form of internet scam well recognized as creating a likelihood of confusion.

 

Respondent lacks rights and legitimate interests in respect of the at-issue domain name. The at-issue domain name was registered on January 7, 2024, which is nearly a decade after Titan's first use of the TITAN marks and well after Titan's registration the TITAN marks in the United States. Given the notoriety and long-standing prior use and registration of the TITAN marks, Respondent should be presumed to have no rights or legitimate interests in the at-issue domain name. Respondent has no connection with Complainant nor has it been authorized to Complainant's trademarks in a domain name or otherwise. Respondent used a privacy service to register the domain name. Respondent has never made demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services. Instead, the domain name was used to address a website designed to impersonate Complainant and falsely portray a relationship to Complainant. Respondent furthers its illegal scheme by simply substituting its own "returns" contact information and account registration links (rather than Complaint's), and further claiming to be a participant in the Amazon Associates Program. Website users mistakenly believing they are dealing with Complainant are encouraged to provide account credentials to Respondent.

 

Respondent registered and used the at-issue domain name in bad faith. Respondent registered and used the at-issue domain name with knowledge of Complainant's prior rights in the TITAN marks since Respondent monetized Complainant's rights in the TITAN marks via the Amazon Associates Program and admits knowledge of TITAN on Respondent's <titan-attachments.com> website.  Respondent uses its <titan-attachments.com> website to sell goods identical to those of Complainant and as shown on Complainant's own website which gives the impression that Respondent's website is in fact Complainant's website or approved by Complainant and further gives the impression that Respondent may use the confusingly similar domain name to promote Complainant's trademarked goods via the third party Amazon Associates Program, when neither is the case. Nevertheless, the Panel should conclude that Respondent's website is an attempt by Respondent to attract internet users by creating a likelihood of confusion with the Complainant in breach of Policy 4(b)(iv) as to the source, sponsorship, affiliation or endorsement of the website and for the Respondent's direct financial benefit and to disrupt the Complainant's business in breach of Policy 4 (b)(iii). Additionally, Respondent furthers a phishing scheme by fraudulently encouraging users to enter their account information on Respondent's website and inviting users to contact Respondent to handle product returns of Complaint's goods.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has trademark rights in the TITAN ATTACHMENTS mark.

 

Respondent is not affiliated with Complainant and had not been authorized to use Complainant's trademark in any capacity.

 

Respondent registered the at‑issue domain name after Complainant acquired rights in the TITAN ATTACHMENTS trademark.

 

Respondent uses the at-issue domain name to address a website mimicking Complainant's genuine website for financial benefit and to phish for private information.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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.").

 

Identical and/or Confusingly Similar

The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.

 

Complainant demonstrates rights in the TITAN ATTACHMENTS mark per Policy ¶ 4(a)(i) through its registration of such mark with the USPTO. 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).").

 

Respondent's <titan-attachments.com> domain name contains Complainant's TITAN ATTACHMENTS trademark with its domain name impermissible space replaced by a hyphen, with all followed by the ".com" top-level domain name. The differences between the at-issue domain name and Complainant's TITAN ATTACHMENTS trademark are insufficient to distinguish the domain name from Complainant's mark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that under the Policy <titan-attachments.com> is confusingly similar to TITAN ATTACHMENTS. See Apex Brands, Inc. v. Chen xiansheng / chenxiansheng, FA2206002001175 (Forum Aug. 1, 2022) (Finding <gear-wrench.com> "confusingly similar to Complainant's mark because it incorporates the GEARWRENCH mark in its entirety and merely adds a hyphen, which does nothing to distinguish the domain name from the mark, and the inconsequential ".com" generic top-level domain ("gTLD"), which may be ignored.").

 

Rights or Legitimate Interests

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. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant's prima facie showing acts conclusively.

 

Respondent lacks both rights and legitimate interests in respect of the <titan-attachments.com> domain name. Respondent is not authorized to use Complainant's trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or legitimate interests in respect of the at‑issue domain name. See Navistar International Corporation v. N Rahmany, FA 1620789 (Forum Jun. 8, 2015) (finding that the respondent was not commonly known by the at-issue domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark into any domain name).

 

The WHOIS information for the at-issue domain name identifies the registrant of <titan-attachments.com> as "guo tian tian" and the record before the Panel contains no evidence that tends to show that Respondent is commonly known by <titan-attachments.com> or any variant thereof. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

Respondent used <titan-attachments.com> to address a website that mimics Complainant's genuine website and falsely portrays such website as the "Titan® Attachments - USA Official Store". The website facilitates the purchase of Complainant's products by linking purchase supporting buttons on the <titan-attachments.com> website to Complainant's official product pages on Amazon, without Complainant's authorization to do so. Respondent's <titan-attachments.com> website thereby attempts to pass itself off as Complainant's to cause consumers to falsely believe that Respondent is, or is affiliated with, Complainant when in fact Respondent is using the domain name to benefit from an increase in its Amazon Associate activity. Respondent's use of the <titan-attachments.com> domain name in this manner constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (refusing to find rights and legitimate interests in a domain name on the part of a respondent when the disputed domain name "resolves to a website that Respondent has designed to mimic Complainant's own in an attempt to pass itself off as Complainant")

 

Given the forgoing, the Panel finds that Respondent lacks rights and lacks legitimate interests in respect of <titan-attachments.com>.

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, there is evidence from which the Panel concludes that Respondent acted in bad faith pursuant to the Policy.

 

Respondent used the at-issue domain name to address a website that pretended to be affiliated with or sponsored by Complainant. Respondent's use of <titan-attachments.com> to pass itself off as Complainant is disruptive to Complainant's business and shows Respondent's intent to attract internet users looking for Complainant to Respondent's website so that Respondent might capitalize on the confusion Respondent created between its <titan-attachments.com> domain name and Complainant's TITAN ATTACHMENTS trademark. Additionally, Respondent's <titan-attachments.com> website substitutes its own "returns" contact information and account registrations links for Complainant's thereby allowing Respondent to trick users who falsely believe they are dealing with Complainant into providing account information and passwords to Respondent. Respondent can thus use the <titan-attachments.com> domain name and website to phish for private and confidential information from site visitors. Respondent's use of <titan-attachments.com> demonstrates Respondent's bad faith registration and use under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv) . See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting internet users searching for the complainant to its own website and likely profiting); see also, Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (refusing to find rights and legitimate interests in a domain name on the part of a respondent when the disputed domain name "resolves to a website that Respondent has designed to mimic Complainant's own in an attempt to pass itself off as Complainant"); see also, FIL Limited v. Li jie, FA 1718900 (Forum Mar. 17, 2017) (finding the <fidelity.cn.com> domain name was registered and used in bad faith as it resolved to a website which mimicked the complainant's login page in an attempt to gain internet users' personal and financial information).

 

Moreover, Respondent registered the <titan-attachments.com> domain name with actual knowledge of Complainant's trademark rights in TITAN ATTACHMENTS. Respondent's prior knowledge of Complainant's rights is apparent from the notoriety of Complainant's trademark, from Respondent's use of the domain name to mimic Complainant's genuine website, and from Respondent's claim on the <titan-attachments.com> website stating the website is "Titan® Attachments – USA Official Store." Respondent's registration of <titan-attachments.com> with knowledge of Complainant's trademark rights in TITAN ATTACHMENTS further indicates Respondent's bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed the disputed domain name").

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <titan-attachments.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: August 15, 2024