URS DEFAULT DETERMINATION
3M Company v. Ernesto Duch
Claim Number: FA1503001611647
DOMAIN NAME
<meguiars.cleaning>
PARTIES
| Complainant: 3M Company of St. Paul, MN, United States of America | |
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Complainant Representative: Norton Rose Fulbright US LLP
Brandon M. Ress of Austin, TX, United States of America
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| Respondent: Ernesto Duch of madrid, II, ES | |
REGISTRIES and REGISTRARS
| Registries: Fox Shadow, LLC | |
| Registrars: Cronon AG |
EXAMINER
| The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding. | |
| Luz Helena Villamil Jimenez, as Examiner |
PROCEDURAL HISTORY
| Complainant Submitted: March 26, 2015 | |
| Commencement: March 27, 2015 | |
| Default Date: April 13, 2015 | |
| Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules"). |
RELIEF SOUGHT
| Complainant requests that the domain name be suspended for the life of the registration. |
STANDARD OF REVIEW
| Clear and convincing evidence. |
FINDINGS and DISCUSSION
| Findings of Fact: The Complainant at hand refers to the domain name <meguiars.cleaning> registered by Ernesto Duch domiciled in Madrid, Spain. Complainant claims being the owner of the trademark MEGUIAR'S registered and in use in several jurisdictions around the world, including Spain. |
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Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark: Determined: Finding for Respondent The registered domain name <meguiars.cleaning> is virtually identical to the trademark MEGUIAR'S, for which registration copies were submitted with the Complaint. However, while the Complainant is 3M Company, the trademark registrations submitted, as well as the explanation text of the Complaint, indicate that the trademark is registered in the name of Meguiar's Inc. Since no support is provided to demonstrate any relationship or link between the trademark holder and the Complainant, the Examiner finds that the complaint does not meet the URS requirement of 1.2.6.1. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant The Complainant claims that the Respondent has no relationship, connection, endorsement, or association with Complainant. Respondent has never requested or received any authorization, permission, or license from Complainant to use the MEGUIAR’S mark. Furthermore, no evidence in the WHOIS suggests that Respondent is known by “Meguiar.” In this concern, the Examiner considers that it is extremely difficult, if not impossible, to coin a name identical to a distinctive trademark such as MEGUIAR'S which was demonstrated to be owned by a company other than the domain holder, and therefore the Examiner considers that the complaint meets URS requirement of 1.2.6.2.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant The Complainant explains in the Complaint that numerous waxes, polishes, cleaners, and protectants are sold under the MEGUIAR’S trademark in countries around the world, including Spain. With this in mind, the Complainant argues that the Respondent clearly registered the disputed domain name with the MEGUIAR’S mark in mind in light of the obvious link between the “.cleaning” gTLD and the nature of the products sold under the MEGUIAR'S trademark. Respondent undoubtedly knew the MEGUIAR’S mark, and goodfaith use is inconceivable. The Examiner is in agreement with this assertion, being consistent with the fact that there is no coincidence in creating a domain name conformed in its distinctive element (the top-level domain should be left out to make the respective comparison) by a registered trademark owned by a third party. In light of the foregoing, and taking into consideration that it was also demonstrated that the disputed domain name resolves to a holding page created by the registrar and therefore indeed the Respondent cannot assert that it is making a bona fide offering of goods or services or a legitimate use of the domain name, the Examiner considers that the complaint meets URS requirement of 1.2.6.3. FINDING OF ABUSE or MATERIAL FALSEHOOD The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. The Examiner finds as follows:
The complaint at hand cannot be held to be abusive. However, the Complainant failed to demonstrate that it holds a valid national or regional registration and that is in current use since the documentation submitted demonstrates that the trademark MEGUIAR'S is registered in the name of a company other than the Complainant. Therefore the Examiner determines that the Complainant has NOTdemonstrated all three elements of the URS by a standard of clear and convincing evidence.
DETERMINATION
After reviewing the parties’ submissions, the Examiner determines that the Complainant
has NOT demonstrated all three elements of the URS by a standard of clear and convincing
evidence; the Examiner hereby Orders the following domain name(s) be returned to
the control of Respondent:
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Luz Helena Villamil Jimenez Examiner
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