MTD Products Inc v. Privacy.co.com / Savvy Investments, LLC Privacy ID# 813182
Claim Number: FA1909001860462
Complainant is MTD Products Inc (“Complainant”), represented by Christopher A. Corpus, Ohio, USA. Respondent is Privacy.co.com / Savvy Investments, LLC Privacy ID# 813182 (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cubcadetmowers.com> registered with Sea Wasp, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 31, 2019; the Forum received payment on September 3, 2019.
On September 5, 2019, Sea Wasp, LLC confirmed by e-mail to the Forum that the <cubcadetmowers.com> domain name is registered with Sea Wasp, LLC and that Respondent is the current registrant of the name. Sea Wasp, LLC has verified that Respondent is bound by the Sea Wasp, LLC 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 September 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 30, 2019 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@cubcadetmowers.com. Also on September 9, 2019, 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 October 2, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret..) 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 is a market leading in design, manufacture, and sale of outdoor power equipment. Complainant has rights in the CUB CADET mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,252,738, registered October 4, 1983). Respondent’s <cubcadetmowers.com> domain name is confusingly similar to Complainant’s mark as it wholly incorporates Complainant’s mark, merely adding the generic term “mowers.”
Respondent lacks rights or legitimate interests in the <cubcadetmowers.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent to use the mark. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to resolve to a parked website containing various pay-per-click links. Respondent uses the confusingly similar disputed domain name to divert Internet users to Respondent’s commercial website.
Respondent registered and uses the <cubcadetmowers.com> domain name in bad faith. Respondent disrupts Complainant’s business and attracts Internet users for commercial gain by using the disputed domain name to operate a pay-per-click link website. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the CUB CADET based on Complainant’s trademark registration predating Respondent’s registration of the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a market leading in design, manufacture, and sale of outdoor power equipment. Complainant has rights in the CUB CADET mark through its registration of the mark with the USPTO. (Reg. No. 1,252,738, registered October 4, 1983). Respondent’s <cubcadetmowers.com> domain name is confusingly similar to Complainant’s mark.
Respondent registered the <cubcadetmowers.com> domain name on April 28, 2003.
Respondent lacks rights or legitimate interests in the <cubcadetmowers.com> domain name. Respondent uses the disputed domain name to resolve to a parked website containing various pay-per-click links. Respondent uses the confusingly similar disputed domain name to divert Internet users to Respondent’s commercial website.
Respondent registered and uses the <cubcadetmowers.com> domain name in bad faith.
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”).
Complainant has rights in the CUB CADET mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g. Reg. No. 1,252,738, registered October 4, 1983).. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <cubcadetmowers.com> domain name is confusingly similar to Complainant’s mark as it wholly incorporates Complainant’s mark, merely adding the generic term “mowers.”
Respondent lacks rights or legitimate interests in the <cubcadetmowers.com> domain name. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the mark. The WHOIS information for the disputed domain name lists the registrant as “Privacy.co.com / Savvy Investments, LLC Privacy ID# 813182.” WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name).
Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii) because Respondent uses the disputed domain name to resolve to a parked website containing various pay-per-click links. See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business); see also George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name).
Respondent registered the <cubcadetmowers.com> domain name with actual knowledge of Complainant’s rights in the CUB CADET. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cubcadetmowers.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 17, 2019
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