MTD Products Inc. v Dilmurot Adilboev
Claim Number: FA1806001793676
Complainant is MTD Products Inc (“Complainant”), represented by Christopher A. Corpus, Ohio, USA. Respondent is Dilmurot Adilboev (“Respondent”), Russian Federation.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cubcadet.pro>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 26, 2018; the Forum received payment on June 26, 2018.
On June 26, 2018, NameCheap, Inc confirmed by e-mail to the Forum that the <cubcadet.pro> domain name is registered with NameCheap, Inc and that Respondent is the current registrant of the name. NameCheap, Inc has verified that Respondent is bound by the NameCheap, Inc 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 27, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 17, 2018 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@cubcadet.pro. Also on June 27, 2018, 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 July 20, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a market leader in the design, manufacture, and sale of outdoor power equipment worldwide. In connection with this business, Complainant markets and sells CUB CADET branded outdoor power equipment. Complainant acquired the brand “Cub Cadet” from International Harvester, including the assignment of rights in the CUB CADET mark based on the registration of the mark in the United States in 1983.
Complainant alleges that the disputed domain name is identical to its CUB CADET mark as it incorporates the mark in its entirety and is differentiated only by the addition of the “.pro” generic top-level domain name (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the CUB CADET mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a parked website containing various pay-per-click links, including to products which compete with those of Complainant, from which Respondent presumably gains. Further, prior to Respondent receiving cease and desist letter, the website resolved to a page with pornographic images. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name’s website which hosts competing, pay-per click hyperlinks. Finally, Respondent clearly had actual or constructive knowledge of Complainant’s rights in the CUB CADET mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CUB CADET and uses it to market a wide range of outdoor power equipment worldwide (such as lawnmowers and snow throwers), including replacement parts. The mark is well known.
Complainant’s rights in its mark date back to at least 1983.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a web page containing click-through advertisements to products that compete with those of 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The disputed domain name is identical to Complainant’s CUB CADET mark as it incorporates the mark in its entirety and is differentiated only by the addition of the “.pro” gTLD. An addition of a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds that the <cubcadet.pro> domain name is identical to the CUB CADET mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name per Policy ¶ 4(c)(ii). See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum Jul. 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record lists the registrant as “Dilmurot Adilboev,” and no information on the record indicates that Respondent is authorized or licensed to use the CUB CADET mark. The Panel therefore finds that Respondent has not been commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent fails to use the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to resolve to a web page hosting various pay-per-click links, including to products that compete with those of Complainant, from which Respondent presumably gains. Use of a disputed domain name to host pay-per-click links for commercial gain is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”). Therefore, the Panel finds that Respondent failed to use the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii).
Further, prior to Complainant’s cease and desist letter, the disputed domain name resolved to a web site with adult entertainment images. Resolving a confusingly similar domain name to a web site with adult entertainment material images is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(a)(ii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”). Therefore, the Panel finds, on this ground also, that Respondent failed to use the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶ 4(a)(ii).
For all the reasons given above, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving web site at first contained adult entertainment material and now contains advertising links to competing products. Thus Respondent disrupts Complainant’s business and attempts to attract, for commercial gain, users to the disputed domain name’s website. Use of a domain name to disrupt a complainant’s business by hosting competing hyperlinks can demonstrate bad faith under Policy ¶¶ 4(b)(iii) an/or (iv). American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum January 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iii)”); see also Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cubcadet.pro> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 20, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page