Focus Technology Co., Ltd. v. Domain Admin
Claim Number: FA0601000625555
Complainant is Focus Technology Co., Ltd. (“Complainant”), represented by Maggie Chi MengJie, 13F, Unicom Mansion, No.32, Zhongyang Road, Nanjing, Jiangsu Province 210008, The People's Republic of China. Respondent is Domain Admin (“Respondent”), 5654 St. Joe Road, Fort Wayne, IN 46835.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <apricus.com>, registered with Desert Devil, Inc.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 13, 2006; the National Arbitration Forum received a hard copy of the Complaint on January 19, 2006.
On January 14, 2006, Desert Devil, Inc. confirmed by e-mail to the National Arbitration Forum that the <apricus.com> domain name is registered with Desert Devil, Inc. and that Respondent is the current registrant of the name. Desert Devil, Inc. has verified that Respondent is bound by the Desert Devil, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On January 20, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 9, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@apricus.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 15, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <apricus.com> domain name is identical to Complainant’s APRICUS mark.
2. Respondent does not have any rights or legitimate interests in the <apricus.com> domain name.
3. Respondent registered and used the <apricus.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Focus Technology Co., Ltd., authorizes a Chinese company, Apricus Solar Co., Ltd., to sell solar water heaters under the APRICUS mark. Complainant has a worldwide distribution network of more than thirty distributors and was a sponsor of the U.S. Solar Power 2005 Conference.
Complainant registered the APRICUS mark with the United States Patent and Trademark Office (“USPTO”) on November 22, 2005 (U.S. Reg. No. 3,018,119 issued November 22, 2005; filed on July 26, 2004). Complainant also holds trademark registrations for the APRICUS mark in the People’s Republic of China, Canada, United Kingdom, Australia, New Zealand, and the European Union. Complainant registered the <apricus-solar.com> and <apricussolar.com> domain names on November 12, 2003.
Respondent registered the <apricus.com> domain name on September 8, 2005. On September 9, 2005, Respondent offered to sell the <apricus.com> domain name registration to Complainant. Respondent is using the disputed domain name to divert Internet users to a search engine containing links to Complainant’s direct competitors and to unrelated content.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant has established rights in the APRICUS mark through registration of the mark with the USPTO. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also Thompson v. Zimmer, FA 190625 (Nat. Arb. Forum Oct. 27, 2003) (“As Complainant’s trademark application was subsequently approved by the U.S. Patent and Trademark Office, the relevant date for showing ‘rights’ in the mark for the purposes of Policy ¶ 4(a)(i) dates back to Complainant’s filing date.”).
Respondent’s <apricus.com> domain name is identical to Complainant’s APRICUS mark pursuant to Policy ¶ 4(a)(i) because it wholly incorporates Complainant’s mark and adds the generic top-level domain “.com” to the end. Panels have held that the addition of a generic top-level domain to a complainant’s mark is irrelevant in conducting a Policy ¶ 4(a)(i) analysis. Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights or legitimate interests in the <apricus.com> domain name. Complainant has the initial burden of proof in establishing that Respondent has no rights or legitimate interests in the domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <apricus.com>
domain name. BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June
20, 2000) (“By not submitting a response, Respondent has failed to invoke any
circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any
rights or legitimate interests in the domain name”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on
Respondent's failure to respond, it is presumed that Respondent lacks all
rights and legitimate interests in the disputed domain name.”). However, the Panel will now examine the
record to determine if Respondent has rights or legitimate interests under
Policy ¶ 4(c).
There is also no evidence in the record suggesting that
Respondent is commonly known by the <apricus.com> domain
name. Therefore, Respondent has not
established rights or legitimate interests in the <apricus.com>
domain name pursuant to Policy ¶ 4(c)(ii).
Gallup, Inc. v. Amish Country
Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the
respondent does not have rights in a domain name when the respondent is not
known by the mark).
In addition, Respondent is using
the <apricus.com> domain name,
which is identical to Complainant’s APRICUS mark, to divert Internet users to a
third-party website that features links to Complainant’s direct competitors and
unrelated content. Such use of
the disputed domain name for apparent commercial gain does not constitute a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a
legitimate noncommercial or fair use of the domain name pursuant to Policy ¶
4(c)(iii). See TM Acquisition Corp.
v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the
respondent’s diversionary use of the complainant’s marks to send Internet users
to a website which displayed a series of links, some of which linked to the
complainant’s competitors, was not a bona fide offering of goods or
services); see also Coryn Group, Inc. v. Media
Insight, FA 198959 (Nat. Arb. Forum Dec.
5, 2003) (finding that the respondent was not using the domain names for a bona
fide offering of goods or services nor a legitimate noncommercial or fair
use because the respondent used the names to divert Internet users to a website
that offered services that competed with those offered by the complainant under
its marks).
Respondent’s offer to sell the <apricus.com> domain name registration to Complainant the day after Respondent registered the domain name also indicates that Respondent lacks rights and legitimate interests in the domain name. See Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.”); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <apricus.com> domain
name, which is identical to Complainant’s APRICUS mark, to misdirect Internet
users to a third-party website featuring links to Complainant’s direct
competitors and to unrelated content.
The Panel infers that Respondent receives click-through fees for
diverting consumers to these websites.
Therefore, Respondent is taking advantage of the likelihood of confusion
between Respondent’s domain name and Complainant’s mark and capitalizing on the
goodwill associated with the mark. The
Panel finds that such use constitutes bad faith registration and use pursuant
to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA
208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name
that incorporates another's mark with the intent to deceive Internet users in
regard to the source or affiliation of the domain name is evidence of bad
faith.”); see also Associated Newspapers Ltd. v. Domain Manager, FA
201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the
<mailonsunday.com> domain name is evidence of bad faith pursuant to
Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's
competitors and Respondent presumably commercially benefited from the
misleading domain name by receiving ‘click-through-fees.’”).
Furthermore, Respondent offered to sell the <apricus.com> domain name registration to Complainant one day after registering it. Such conduct indicates that Respondent registered the domain name for the sole purpose of selling it to Complainant and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(i). Deutsche Bank AG v. Bruckner, D2000-0277 (WIPO May 30, 2000) (finding that the name was registered in bad faith because of the short time frame between the respondent’s registration and the unsolicited offer of sale to the complainant).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <apricus.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 1, 2006
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