XTM International Inc v. Zhong Hao
Claim Number: FA2012001925207
Complainant is XTM International Inc (“Complainant”), represented by Claire-Louise Cook of Ponders, Hedgerley Lane, International. Respondent is Zhong Hao (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xtm.com>, which is registered with eName Technology Co., Ltd.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 16, 2020; the Forum received payment on December 16, 2020.
On December 24, 2020, eName Technology Co., Ltd. confirmed by e-mail to the Forum that the <xtm.com> domain name is registered with eName Technology Co., Ltd. and that Respondent is the current registrant of the name. eName Technology Co., Ltd. has verified that Respondent is bound by the eName Technology Co., Ltd. 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 January 4, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 25, 2021 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 firstname.lastname@example.org. Also, on January 4, 2021, a Written Notice of the Complaint, notifying Respondent of the e-mail addresses to which the Complaint was delivered 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 January 29, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant provides software services and has done so since its inception in 2001.
Complainant holds a registration for the trademark and service mark “XTM International,” which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 6,165,749, registered September 29, 2020, on the basis of an application for filed November 6, 2019.
Respondent registered the domain name <xtm.com> on January 9, 2000.
The domain name is confusingly similar to Complainant’s “XTM International” mark.
Respondent makes no active use of the domain name.
Instead, Respondent is merely attempting to sell the domain name to Complainant for an excessive price.
Respondent has no rights to or legitimate interest in the domain name.
Respondent registered and uses the domain name in bad faith.
Respondent failed to submit a Response in this proceeding.
Complainant has failed to prove by competent evidence any of the three elements of its case as provided in the Policy.
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 to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel may, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this administrative proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate from the evidence presented. The Panel is entitled to accept all reasonable allegations set out in a complaint. However, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See, for example, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (2017)(“WIPO Jurisprudential Overview 3.0”) at¶4.3:
In cases involving wholly unsupported and conclusory allegations advanced by the complainant, …, panels may find that … a complainant has failed to prove its case.
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.
In the case before us, the Complaint contains only the scantiest allegations, and the only proof offered in support of those allegations consists of a copy of Complainant’s USPTO trademark/service mark registration. The evidentiary record upon which Complainant asks this Panel to reach the conclusions necessary to justify transfer of the contested domain name to Complainant is therefore woefully lacking. This failure of proof is fatal to Complainant’s request for relief. See, for example, Wild West Domains, Inc. v. Brynne Heaton, WIPO Case No. D2004-0789 (November 23, 2004):
Complainant advances scant evidence to support its conclusionary allegations. As this Panel has noted on several occasions, allegations of legal conclusions have no force or effect under the Policy. A party must plead, and support with evidence, allegations of fact that, if true, allow the Panel to reach the desired legal conclusion.
Complainant having failed to establish all of the three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested by Complainant must be, and it is hereby, DENIED, and the Complaint is, accordingly, DISMISSED.
It is, therefore, Ordered that the challenged domain name, <xtm.com>, REMAIN WITH Respondent.
Terry F. Peppard, Panelist
Dated: February 1, 2021
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