MTD Products Inc v. longqiaofeng
Claim Number: FA2005001897464
Complainant is MTD Products Inc (“Complainant”), represented by Christopher A. Corpus, United States. Respondent is longqiaofeng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mikescubcadets.com>, registered with Jiangsu Bangning Science & technology Co. Ltd..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 22, 2020; the Forum received payment on May 22, 2020. The Complaint was submitted in both Chinese and English.
On May 28, 2020, Jiangsu Bangning Science & technology Co. Ltd. confirmed by e-mail to the Forum that the <mikescubcadets.com> domain name is registered with Jiangsu Bangning Science & technology Co. Ltd. and that Respondent is the current registrant of the name. Jiangsu Bangning Science & technology Co. Ltd. has verified that Respondent is bound by the Jiangsu Bangning Science & 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 June 1, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 22, 2020 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 postmaster@mikescubcadets.com. Also on June 1, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served 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 June 24, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant, MTD Products Inc., is in the business of design and manufacture of outdoor power equipment.
Complainant has rights in the CUB CADET mark based upon the registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <mikescubcadets.com> domain name is confusingly similar to Complainant’s CUB CADET mark because it entirely displays the mark, merely adding the term “mikes” and the letter “s.”
Respondent does not have rights or legitimate interests in the <mikescubcadets.com> domain name because Respondent is not licensed or authorized to use Complainant’s mark and is not commonly known by the at-issue domain name. Additionally, Respondent doesn’t use the domain for any bona fide offering of goods or services or legitimate noncommercial or fair use because Respondent passively holds the domain name.
Respondent registered and uses the <mikescubcadets.com> domain name in bad faith. Respondent asserts a likelihood of confusion as to Complainant’s association with the disputed domain name. Additionally, Respondent fails to make any active use of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the CUB CADET.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in its CUB CADET trademark.
Respondent holds the <mikescubcadets.com> domain name passively.
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 or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
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(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; 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”).
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
The at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its CUB CADET trademark. Such registration is sufficient to demonstrate Complainant’s rights in the CUB CADET mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <mikescubcadets.com> domain name contains Complainant’s CUB CADET trademark less its domain name impermissible space. Complainant’s trademark is prefixed with the term “mikes” (suggestive of Mike’s without its domain name impermissible apostrophe) and the resulting string is followed by an “s” and the top-level domain name “.com”. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <mikescubcadets.com> domain name from the Complainant’s CUB CADET trademark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <mikescubcadets.com> domain name is confusingly similar to Complainant’s CUB CADET trademark. See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”); see also, PathAdvantage Associated v. VistaPrint Technologies Ltd, FA 1625731 (Forum July 23, 2015) (holding that the <pathadvantages.com> domain name was confusingly similar to the PATHADVANTAGE trademark because the domain name “merely adds the letter ‘s’ to Complainant’s mark”)..
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for <mikescubcadets.com> identifies the domain name’s registrant as “longqiaufeng” and the record before the Panel contains no evidence indicating that Respondent is commonly known by the <mikescubcadets.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <mikescubcadets.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same).
Additionally, Respondent holds the <mikescubcadets.com> domain name passively. Respondent’s use the of the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Michelin North America, Inc. v. Energie Media Group, FA 451882 (Forum Aug. 7, 2012) (finding that inactive use, or “passive holding,” of the disputed domain name by a respondent “permits the inference that [the respondent] lacks rights and legitimate interests in the domain names.”)
Given the forgoing, Complainant satisfies its initial burden and shows Respondent’s lack of rights and legitimate interests in the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <mikescubcadets.com> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above regarding rights and legitimate interests, Respondent fails to make any active use of the <mikescubcadets.com> domain name. Respondent’s passive holding of <mikescubcadets.com> shows Respondent’s bad faith registration and use of the domain name per Policy ¶ 4(a)(iii). See Marsh Supermarkets Company, LLC, formerly known as Marsh Supermarkets, Inc. v. Choi Sungyeon, FA1312001532854 (Forum February 25, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <marshsupermarkets.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because Respondent has failed to make an active use of the disputed domain name.”); see also, VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also, The Toronto-Dominion Bank v. Yi Liu, FA1904001838897 (Forum May 15, 2019) (finding bad faith where respondent’s domain name addressed a blank page).
Furthermore, Respondent registered and uses the <mikescubcadets.com> domain name in bad faith by creating a likelihood of confusion as to Complainant’s association with the at-issue domain name. Using Complainant’s well-known mark to create confusion between Complainant’s trademark and Respondent’s domain name, presumably for commercial gain, suggests Respondent’s bad faith under Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mikescubcadets.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 24, 2020
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