The Complainant is Atmel Corporation of California, United States of America represented by Baker Botts, LLP, United States of America.
The Respondent is Shenzhen Nanhuang Electronics Co. Ltd. / wang xingxing of Shenzhen, Guang Dong, China. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 12, 2012. On December 13, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 14, 2012, 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”).
On December 17, 2012, the Center transmitted an email to the Parties in both the Chinese and English language regarding the language of the proceeding. On December 19, 2012, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not submit its comments.
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 December 28, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was January 17, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 18, 2013.
On January 24, 2013, the Complainant requested directions regarding the addition of another domain name, , to the Complaint. The Center notified the Complainant that the request would be put to the Panel for its consideration.
The Center appointed Kar Liang So as the sole panelist in this matter on February 4, 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 United States company founded in 1984 with over 5,100 employees worldwide. It is a leading designer and manufacturer of microcontrollers, capacitive touch solutions, advanced logic, mixed-signal, non-volatile memory and radio frequency components. The Complainant has sales offices and distributors worldwide, including 9 sales offices and 10 distributors in China, where the Respondent is located.
The Complainant has been using the trade mark ATMEL in relation to its products and services since 1985. The Complainant has promoted the trade mark ATMEL extensively. Sales of products under the trade mark ATMEL in 2011 exceeded USD1.8 billion. Products under the trade mark ATMEL have received awards including the American Technology Award (2011), “EDN China Innovation Award (2010, 2008, 2007), Electronics Products China Product of the Year (2009) and Portable Design China – one of top five microcontrollers (2007).
The trade mark ATMEL is registered in a number of jurisdictions. Some of the registrations are:
Jurisdiction Trade mark number Registration date
United States
1526686
February 28, 1989
China
5243444
June 21, 2009
The Complainant has also been using a stylized form of the trade mark ATMEL since December 1991, the representation of which is show below (the “Logo”):
Trade mark registrations for the Logo include:
Jurisdiction Trade mark number Registration date
United States
2025438
December 24, 1996
China
1096598
September 7, 1997
The Complainant also owns trade mark registrations for the Chinese characters爱梅尔 and 爱特梅尔 in China.
The Complainant operates its official website under the domain name .
The Disputed Domain Name was registered on August 23, 2012. As of November 19, 2012, the Disputed Domain Name resolved to a website which prominently featured the trade mark ATMEL, the Logo and the Chinese characters爱梅尔 and 爱特梅尔. Many pages on the website associated the Respondent with the term “ATMEL 代理商” (i.e., “ATMEL agent”). The website purported to offer for sale electronics and integrated circuit products.
Information about the Respondent is limited to the WhoIs details of the Disputed Domain Name and the content of the website resolved therefrom as contained in the evidence presented by the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant contends that:
a) The Disputed Domain Name is identical or confusingly similar to the Complainant’s trade mark ATMEL. It incorporates the trade mark ATMEL in its entirety. The addition of the descriptive term “chip” does not significantly distinguish the Disputed Domain Name from the trade mark ATMEL;
b) The Respondent has no rights or legitimate interests in the Disputed Domain Name. The Respondent is not a licensee or distributor of the Complainant and is not authorized to use the Complainant’s trade marks. The Respondent is not known by the names Atmel or Atmel-Chip; and
c) The Respondent registered and is using the Disputed Domain Name in bad faith. The website resolved from the Disputed Domain Name copied many aspects of the Complainant’s website. The Respondent has no connection with the Complainant but registered the Disputed Domain Name in an attempt to take advantage of the Complainant’s distinctive and widely known mark. The Respondent was aware of the Complainant’s trade marks and desires to profit from the trade mark ATMEL. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Addition of Disputed Domain Name
The Complainant seeks to add the domain name to the proceeding. However, by the time of the Complainant’s request to do so, the Respondent had already defaulted on the Response and the matter was ready for the appointment of the Panel. The Panel is mindful of paragraph 10(c) of the Rules to ensure that the proceeding takes place with due expedition. Allowing the request would necessitate amendment of the Complaint and additional time for its notification and for the filing of a Response, essentially rewinding the whole proceeding to the beginning. So as not to cause delay to the proceeding which has already progressed significantly, the Panel shall decline to add the domain name to the proceeding. 6.2 Language of Proceeding
As the registration agreement is in Chinese, the default language of the proceeding is Chinese. The Complainant has requested that English be adopted instead. Having considered the circumstances of the case, the Panel determines that the matter will proceed in English for the following reasons:
a) The Complaint has already been submitted in English;
b) The Complainant is based in the United States of America. Although the Complainant did not expressly confirm that it is not conversant with the Chinese language, the Complainant clearly had a preference for English to be the language of the proceeding;
c) The Respondent has not participated in the proceeding. The Respondent neither filed a Response nor commented on the language of the proceeding;
d) Insisting that Chinese shall be the language of the proceeding will likely cause delay in the proceeding associated with the filing of a translation of the Complaint into Chinese; and
e) It is not apparent to the Panel that adopting English as the language of the proceeding will cause any undue prejudice or delay to the proceeding. 6.3 Discussion
To succeed herein, the Complainant must establish that:
a) The Disputed Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights;
b) The Respondent has no rights or legitimate interests in the Disputed Domain Name; and
c) The Respondent registered and is using the Disputed Domain Name in bad faith. A. Identical or Confusingly Similar
The Panel does not doubt that the Complainant has rights in the trade mark ATMEL by virtue of its trade mark registrations. The Disputed Domain Name incorporates the trade mark ATMEL in its entirety and the only practical distinction between the Disputed Domain Name and the trade mark ATMEL is the addition of the suffix “chip” and the generic Top Level Domain (“gTLD”) to the Disputed Domain Name. The Panel accepts the Complainant’s submission that “chip” is a descriptive word. In particular, “chip” is often associated with products in the Complainant’s field of activity. The Panel agrees that it is insufficient to distinguish the Disputed Domain Name from the trade mark ATMEL. Furthermore, the gTLD may be disregarded for the purposes of comparison as is customary in cases under the Policy. Accordingly, it is held that the Disputed Domain Name is confusingly similar to the trade mark ATMEL and that the requirements of paragraph 4(a)(i) of the Policy have been satisfied. B. Rights or Legitimate Interests
The Complainant has confirmed that it has not authorized the Respondent to use the trade mark ATMEL or the Disputed Domain Name. There is also no evidence to suggest that the Respondent may be known by the name ATMEL or ATMEL-CHIP. No reasonable basis appears in the available evidence which could support a contention that the Respondent has rights or legitimate interests in the Disputed Domain Name. In fact, no such contention has been forwarded by the Respondent. In the circumstances, there is a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name and the Respondent, through its default has not rebutted this prima facie case. Accordingly, the Panel finds that the Complainant has proved that the Respondent has no rights or legitimate interests in the Disputed Domain Name and that the requirements of paragraph 4(a)(ii) of the Policy have been satisfied. C. Registered and Used in Bad Faith
Based on the evidence submitted, it can hardly be coincidence that the Respondent had adopted the trade mark ATMEL in the Disputed Domain Name. The Respondent must have known about the trade mark rights of the Complainant. The Panel has noted the numerous references to the words “ATMEL 代理商” (i.e., ATMEL agent) on the website resolved from the Disputed Domain Name. The copious use of the trade mark ATMEL, the Logo, the Chinese marks爱梅尔 and 爱特梅尔 and the detailed write-up about the Complainant on the website resolved from the Disputed Domain Name point unequivocally to the Respondent’s significant familiarity with the Complainant and the Complainant’s trade marks. The website is clearly set up with commercial gain in mind. The circumstances fall squarely within the scope of bad faith illustrated in paragraph 4(b)(iv) of the Policy and the Panel concludes that bad faith registration and use arises on the facts. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name be transferred to the Complainant.
Kar Liang Soh
Sole Panelist
Date: March 4, 2013
Full & Egal Universal Law Academy