Radio Flyer Inc. v. liu ying huan
Claim Number: FA2103001936331
Complainant is Radio Flyer Inc. (“Complainant”), represented by Joshua S. Frick of Barnes & Thornburg LLP, Illinois, USA. Respondent is liu ying huan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radioflyertricycle.com>, registered with Alibaba Cloud Computing (Beijing) 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 March 11, 2021; the Forum received payment on March 11, 2021.
On March 15, 2021, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <radioflyertricycle.com> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) 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 March 16, 2021, the Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of April 5, 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 postmaster@radioflyertricycle.com. Also on March 16, 2021, the Chinese language 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 April 11, 2021, 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.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
A. Complainant
Complainant contends as follows:
Since 1917, Complainant has been manufacturing and selling safe, high-quality toys, and has grown into a leading designer, manufacturer and provider of toys including wagons, tricycles, scooters, balance bikes and other ride-on toys as well as parts and accessories for these goods.
Complainant has rights in the RADIO FLYER mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <radioflyertricycle.com> domain name is confusingly similar to Complainant’s RADIO FLYER mark as it incorporates Complainant’s famous RADIO FLYER mark in its entirety, merely adding the generic term “tricycle,” a term closely related to Complainant, and the generic top level domain (gTLD) “.com.”
Respondent lacks rights or legitimate interests in the <radioflyertricycle.com> domain name. Respondent has never been known or referred to as RADIO FLYER or any variation thereof and is not affiliated with, licensed or otherwise authorized by Complainant to use the RADIO FLYER mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services as Respondent uses the disputed domain name to pass off as Complainant.
Respondent registered and uses the <radioflyertricycle.com> domain name in bad faith. Respondent registered a confusingly similar domain name to pass itself off as Complainant. Additionally, Respondent had actual knowledge of Complainant’s rights to the RADIO FLYER mark prior to registering the at-issue domain name based on Respondent’s use of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the RADIO FLYER mark.
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 the RADIO FLYER trademark.
Respondent uses the at-issue domain name to address to pass itself off as Complainant.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO trademark registration for RADIO FLYER is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i)”).
Respondent’s <radioflyertricycle.com> domain name contains Complainant’s entire RADIO FLYER trademark, less its domain name impermissible space, followed by the suggestive term “tricycle.” The top-level domain name “.com” completes the domain name. The differences between Complainant’s trademark and Respondent’s <radioflyertricycle.com> domain name fail to distinguish the domain name from Complainant’s mark for the purpose of Policy ¶ 4(a)(i). In fact, the inclusion of the term “tricycle” in Respondent’s domain name suggests Complainant’s product line and therefore such term only adds to any confusion between Complainant’s RADIO FLYER trademark and Respondent’s <radioflyertricycle.com> domain name. The Panel thus concludes that Respondent’s <radioflyertricycle.com> domain name is confusingly similar to Complainant’s RADIO FLYER trademark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”).
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). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “liu ying huan” and the record before the Panel contains no evidence otherwise showing that Respondent is commonly known by the <radioflyertricycle.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <radioflyertricycle.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name).
Additionally, Respondent uses its <radioflyertricycle.com> domain name to pass itself off as Complainant. The confusingly similar domain name addresses a website that mimics Complainant’s website. The website includes Complainant’s copyrighted pictures of RADIO FLYER products, a false copyright notice, and prominently displays Complainant’s RADIO FLYER trademark. Using 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 Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, circumstances are present based on which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights and legitimate interests, Respondent registered and is using its confusingly similar <radioflyertricycle.com> domain name to pass itself off as Complainant. Using the domain name in such manner, to mislead internet users as to the sponsorship of the at-issue domain name and its associated website, indicates Respondent’s bad faith pursuant to Policy ¶ 4(b)(iv). See American Cheerleader Media, LLC. v. ilir shoshi / cheer, FA 1592319 (Forum Jan. 20, 2015) (“The Panel here finds that Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) as … Respondent utilizes a logo and stylized font identical to Complainant’s own, as well as Complainant’s copyrighted images and text in an attempt to pass itself off as Complainant.”); see also AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
Additionally, Respondent had actual knowledge of Complainant’s rights in the RADIO FLYER mark when Respondent registered <radioflyertricycle.com> as a domain name. Respondent’s actual knowledge is evident from the widespread and long lasting notoriety of the RADIO FLYER trademark and from Respondent’s misappropriated display of Complainant’s trademark and copyrighted product images on Respondent’s <radioflyertricycle.com> website. See, AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”); see also, Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name);
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <radioflyertricycle.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 12, 2021
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