WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AVK Holding A/S v. Huang Ting/ting huang
Case No. D2013-1818
1. The Parties
The Complainant is AVK Holding A/S of Galten, Denmark, represented by Hanne Paarup Christiansen, Denmark.
The Respondent is Huang Ting/ting huang, of Shanghai, China.
2. The Domain Name and Registrar
The disputed domain name <avkvalve.com> (the “Domain Name”) is registered with Web Commerce Communications Limited dba WebNic.cc (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 24, 2013. On October 24, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 25, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 8, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was November 28, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 29, 2013.
The Center appointed Karen Fong as the sole panelist in this matter on December 9, 2013. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant is a well known manufacturer and seller of valves. It is the owner of the trade marks AVK, AVK (logo) and AVK VALVES in many countries around the world including China. The earliest trade mark submitted in evidence is 1994 and the latest, 2010. The Complainant has been in the Chinese market since the mid 1990’s. Presently the Complainant employs approximately 500 employees in China in its factories and sales companies in Kunshan, Anhui, Nanjing and Shanghai. The Complainant’s main website is at “www.avkvalves.com” and its website in China is at “www.avkchina.com”.
The Respondent registered the Domain Name on June 6, 2013. The Domain Name is connected to a website (“the Website”) that bears the AVK (logo) prominently on each web page. The photographs, design and content of the Website have been copied from the Complainant’s main website at “www.avkvalves.com” and translated into Chinese.
5. Parties’ Contentions
The Complainant contends that the Domain Name is identical or confusingly similar to the AVK and/or AVK VALVES trade marks, the Respondent has no rights or legitimate interests with respect to the Domain Name and that the Domain Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain Name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name was registered and is being used in bad faith.
B. Identical or Confusingly Similar
The Panel accepts that the Complainant has trade mark rights to the name AVK and/or AVK VALVES through use and registration that predates the Respondent’s registration of the Domain Name.
The consensus view under paragraph 2.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) says this:
“The threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion. In order to satisfy this test, the relevant trademark would generally need to be recognizable as such within the domain name, with the addition of common, dictionary, descriptive, or negative terms typically being regarded as insufficient to prevent threshold Internet user confusion. Application of the confusing similarity test under the UDRP would typically involve a straightforward visual or aural comparison of the trademark with the alphanumeric string in the domain name.”
The Domain Name integrates the Complainant’s trade mark AVK with the word “valve” and the gTLD “.com”. Further and/or alternatively, the Domain Name comprises the trade mark AVK VALVES excluding the plural, ‘s’, in the word ‘valves’ and the gTLD “.com”. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic domain suffix. The word AVK and/or AVK VALVES is clearly recognizable within the Domain Name. The addition of the descriptive word “valves” as a suffix to the word AVK and/.or the deletion of the letter ‘s’ from AVK VALVES do not negate the confusing similarity encouraged by the Respondent’s complete adoption of the AVK and/or AVK VALVES trade marks in the Domain Name.
The Panel finds that the Domain Name is confusingly similar to the AVK and/or AVK VALVES trade marks of the Complainant, and that the requirements of paragraph 4(a)(i) of the Policy are therefore fulfilled.
C. Rights or Legitimate Interests
The Complainant contends that the Respondent is not commonly known by the Domain Name. The fact that the Website is a copy of the Complainant’s website is an indication that the Respondent does not have rights or legitimate interests in the Domain Name. Further, there is no evidence that the Respondent is making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade marks at issue.
The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name. Further, paragraph 14 of the Rules provides that the Panel may draw such inferences from such a default as it considers appropriate.
Accordingly, the Panel infers from the Respondent’s silence that the Complainant’s allegations are, in fact, correct. And the Panel finds that paragraph 4(a)(ii) of the Policy has been satisfied.
D. Registered and Used in Bad Faith
To succeed under the Policy, a complainant must show that the domain name has been both registered and used in bad faith. It is a double requirement.
The Panel is satisfied that the Respondent was aware of the Complainant’s famous trade mark when it registered the Domain Name. The Complainant has provided sufficient evidence that the Domain Name registration post dates the AVK and/or AVK VALVES trade mark registrations and use.
The very incorporation of the Complainant’s trade marks in the Domain Name which resolves to the Website which is a close copy of the Complainant’s website confirms the Respondent’s awareness of the trade marks. Thus, the Panel concludes that the Respondent deliberately registered the Domain Name in bad faith.
The Panel also concludes that the actual use of the Domain Name was in bad faith. The use of the Complainant’s trade marks as the dominant part of the Domain Name is intended to capture Internet traffic from Internet users who are looking for the Complainant’s products and services. The Domain Name and the content of the Website are calculated to confuse Internet users that the Respondent is or is somehow connected to the Complainant. This shows a clear intention on the part of the Respondent to attract for commercial gain by creating Internet user confusion through suggesting source, sponsorship, affiliation or endorsement by the Complainant of the Respondent’s website. This constitutes bad faith use of the Domain Name.
The Panel therefore concludes that the Domain Name was registered and is being used in bad faith under paragraph 4(b)(iv) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <avkvalve.com> be transferred to the Complainant.
Date: January 1, 2014