Solutia, Inc. v. QT.CN a/k/a Zheng Min Jie
Claim Number: FA0612000874574
Complainant is Solutia Inc. (“Complainant”), represented by Ryan
M. Kaatz of Ladas & Parry, Digital Brands Practice,
224 South Michigan Avenue, Suite 1600, Chicago, IL, 60604. Respondent is QT.CN a/k/a Zheng Min Jie (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <泛达.com>, registered with Enom, Inc.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically December 21, 2006; the National Arbitration Forum received a hard copy of the Complaint December 27, 2006.
On December 29, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the PUNYCODE translation of the <泛达.com> domain name [xn--tww475e.com] is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. verified that Respondent is bound by the Enom, Inc. registration agreement and thereby has 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 10, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 30, 2007, 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@泛达.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 6, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson 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. The domain name that Respondent registered, <泛达.com>, is identical to Complainant’s 泛达 mark.
2. Respondent has no rights to or legitimate interests in the <泛达.com> domain name.
3. Respondent registered and used the <泛达.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Solutia, Inc.,
is a prominent world leader in the applied chemistry industry and has been
since the 1960’s. Complainant applied
for trademark registrations in International Class 1 and International Class 17
for the 泛达 mark March 20, 2006. The trademarks obtained registered status by
the Trademark Office of State Administration for Industry and Commerce in
Respondent, QT.CN a/k/a Zheng Min Jie, registered the <泛达.com> domain name April 14, 2006. Respondent is using the disputed domain name to redirect Internet users to a website featuring hyperlinks to Complainant’s competitors.
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 will draw such inferences as the Panel 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 Complainant to 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 filed its trademark applications for the 泛达 mark with the TOSAIC prior to Respondent’s registration of the <泛达.com> domain name. Complainant’s applications were approved approximately five months later. A complainant’s rights in a mark are determined by the filing date, so the Panel concludes that Complainant established legal rights in the 泛达 mark pursuant to Policy ¶ 4(a)(i). See Planetary Soc’y v. Rosillo, D2001-1228 (WIPO Feb. 12, 2002) (holding that the effective date of Complainant’s trademark rights date back to the application’s filing date); 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.”).
The disputed domain name that Respondent registered, <泛达.com>,
contains Complainant’s 泛达 mark in its entirety
and adds the generic top-level domain “.com.”
Since top-level domains are required to register a domain name, they
lack significance in determining whether the disputed domain name is identical
to a complainant’s mark. Therefore, the
Panel finds that Respondent’s <泛达.com>
domain name is identical to Complainant’s 泛达 mark pursuant to
Policy ¶ 4(a)(i).
See Daedong-USA, Inc.
v. O’Bryan Implement Sales, FA 210302 (Nat. Arb. Forum Dec. 29,
2003) (“Respondent's domain name, <kioti.com>, is identical to
Complainant's KIOTI mark because adding a top-level domain name is irrelevant
for purposes of Policy ¶ 4(a)(i).”); see
also Snow Fun, Inc. v. O'Connor, FA 96578 (Nat. Arb. Forum Mar. 8,
2001) (finding thhe domain name <termquote.com> is identical to the
complainant’s TERMQUOTE mark).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Complainant established that it has legal rights in the mark contained in its entirety within the disputed domain name. Complainant alleges that Respondent does not have such rights or legitimate interests in the <泛达.com> 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). Because Respondent failed to respond to the Complaint, the panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO, Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
However, the Panel examines the record to determine if the evidence shows that Respondent has such rights or legitimate interests under Policy ¶ 4(c). The Panel found no evidence in the record that suggests that Respondent is commonly known by the <泛达.com> domain name. Further, the WHOIS information identifies Respondent as “QT.CN a/k/a Zheng Min Jie,” and Complainant has alleged that Respondent is not licensed or authorized to use Complainant’s 泛达 mark in the disputed domain name. The Panel finds no evidence in the record suggesting that Respondent is commonly known by the name. Therefore, the Panel concludes that Respondent is not commonly known by the <泛达.com> domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").
Respondent is using the <泛达.com>
domain name to redirect Internet users to a website featuring hyperlinks to
Complainant’s competitors. Respondent
presumably receives click-through fees for each misdirected Internet user. Respondent is using Complainant’s 泛达 mark for its
own commercial benefit, and such use constitutes neither a bona fide offering of goods and services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under 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 that 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 Bank
of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb.
Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet
users seeking Complainant's website to a website of Respondent and for
Respondent's benefit is not a bona fide
offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent acted in bad faith in registering and using Complainant’s mark in a domain name. The disputed domain name that Respondent registered, <泛达.com>, displays a list of hyperlinks that lead Internet users to the websites of Complainant’s competitors. This is likely to disrupt Complainant’s business by diverting business away from Complainant. Therefore, the Panel finds that Respondent’s use of the disputed domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business).
Respondent’s use of the <泛达.com> domain name, which is confusingly similar to Complainant’s 泛达 mark, is likely to cause confusion among customers searching for Complainant’s products. Specifically, customers accessing the Internet to find Complainant’s products may become confused as to the affiliation, endorsement, or sponsorship of competitors’ products advertised by the links on Respondent’s website that resolves from the disputed domain name. Complainant has alleged that Respondent likely receives click-through fees for each rerouted Internet user. The Panel thus finds that Respondent’s attempt to monetarily profit from this likelihood of confusion between the disputed domain name and Complainant’s 泛达 mark constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by displaying the complainant’s mark on its website and offering identical services as those offered by the complainant); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
The Panel finds that Complainant 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 <泛达.com> domain name and its equivalent PUNYCODE translation [xn--tww475e.com] be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: February 16, 2007.
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