The Complainant is Power Balance, LLC of California, United States of America represented by internally.
The Respondent is Zhi Huang of People’s Republic of China. 2. The Domain Name and Registrar
The disputed domain names and are registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 31, 2010. On August 31, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain names. On September 1, 2010, GoD, Inc. 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 September 6, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 26, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 28, 2010.
The Center appointed Adam Samuel as the sole panelist in this matter on October 1, 2010. 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 manufactures wearable performance technology, such as bracelets and necklaces fitted with the Complainant’s performance technology. The Complainant is the owner of United States trademark no. 3524766, registered on October 28, 2008 for POWER / BALANCE. Both disputed domain names were registered on June 14, 2010. 5. Parties’ Contentions A. Complainant
This section sets out the Complainant’s contentions with which the Panel may or may not agree.
The disputed domain names are confusingly similar to the Complainant’s trademark in that they utilize that trademark in their names. The Complainant sells bracelets and the word “bracelet” in the disputed domain names is there to confuse the public into believing that the disputed domain names are being used to sell legitimate products manufactured by the Complainant when in fact the Respondent is not an authorized seller and is using the Complainant’s trademark to sell counterfeit products.
The Respondent has no intellectual property right to use the disputed domain names and is only using them to sell counterfeit products purporting to be manufactured by the Complainant. A reverse WhoIs report on the Respondent found 18 domain names listed. Each appeared to be in use selling counterfeit goods, offering goods at a huge discount products apparently made by companies such as Nike, Tiffany and Lacoste. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under the Policy, the Complainant must prove that
(i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which it has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
The disputed domain names consist of the two words that make up the Complainant’s trade mark POWER and BALANCE and also have the common word “bracelet” in one case after the Complainant’s trademark and in the other between the two words involved in that trademark. Bracelets are a product commonly manufactured by the Complainant and which are commonly associated with the Complainant. While the words “Power” and “Balance” are common words, they are not regularly linked together except in the context of the Complainant’s name, trademark and goods. The same applies to “bracelet”. The overall effect is to give the impression to the public that the disputed domain names are being used to sell the Complainant’s products. For all these reasons, the Panel concludes that both disputed domains are confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests
The Respondent is not called “Power”, “Balance”, “Bracelet” or anything similar and does not appear to trade under these or any related names. There is no evidence that the Complainant has authorized the Respondent to use its trademark. The Respondent has never asserted any rights or legitimate interests in the Complainant’s trademark or the names that make up the two domain names. For these reasons, on the basis of the available record, notably the absence of a Response in spite of notification of the Complaint in accordance with the Rules, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain names. C. Registered and Used in Bad Faith
The disputed domain names bear no relationship to the Respondent’s name or its business. The disputed domain name has no real meaning unless it relates to the Complainant’s business since the Complainant’s mark consists of two words with no obvious association with each other except through the Complainant, its goods and its trademark. The disputed domain names were registered three years after the Complainant’s trademark was registered in United States. The mark is well known worldwide.
The Respondent appears to be using the disputed domain names to sell goods purporting to be of the Complainant. The Respondent clearly knows of the Complainant and its products. In the absence of any response to the Complaint, the most likely explanation for the Respondent’s registration of the disputed domain name seems to be either to disrupt the Complainant’s relationship with its customers or potential customers or attempt to attract Internet users looking for a website belonging either to the Complainant or those authorized to sell its products. These constitute evidence of registration and use in bad faith: paragraph 4(b)(iii) and (iv) of the Policy.
In the circumstances, it is unnecessary to deal with the Complainant’s other allegations. For all the above reasons, the Panel concludes that the disputed domain names were registered and are being used in bad faith. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names and be transferred to the Complainant.
Adam Samuel
Sole Panelist
Dated: October 15, 2010
Full & Egal Universal Law Academy