MTD Products Inc v. Hush Whois Protection Ltd.
Claim Number: FA1909001861556
Complainant is MTD Products Inc (“Complainant”), represented by Christopher A. Corpus, Ohio, USA. Respondent is Hush Whois Protection Ltd. (“Respondent”), Seychelles.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cubcadetparts.org>, registered with PSI-USA, Inc. dba Domain Robot.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 10, 2019; the Forum received payment on September 10, 2019.
On September 11, 2019, PSI-USA, Inc. dba Domain Robot; PSI-USA, Inc. dba Domain Robot confirmed by e-mail to the Forum that the <cubcadetparts.org> domain name is registered with PSI-USA, Inc. dba Domain Robot; PSI-USA, Inc. dba Domain Robot and that Respondent is the current registrant of the name. PSI-USA, Inc. dba Domain Robot; PSI-USA, Inc. dba Domain Robot has verified that Respondent is bound by the PSI-USA, Inc. dba Domain Robot; PSI-USA, Inc. dba Domain Robot 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 13, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 3, 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@cubcadetparts.org. Also on September 13, 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 4, 2019, 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 leading in design, manufacture, and sale of outdoor power equipment. Complainant designs and manufacturers for sale to the consuming public lawnmowers, walk-behind lawnmowers, riding lawnmowers and tractors, snow throwers, snow blowers, edgers, chipper/shredders, log splitters, rear and front tine tillers, hand-held equipment and related parts. Complainant has rights in the CUB CADET mark through its registration of the mark in the United States in 1983.
Complainant alleges that the disputed domain name is identical or confusingly similar to its CUB CADET mark as it wholly incorporates the mark, merely adding the generic term “parts.” Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed 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 diverts Internet users to the disputed domain name where Respondent displays a parked website containing various pay-per-click links, including to competing products. Respondent offers the disputed domain name for sale in excess of out-of-pocket costs. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to sell the disputed domain name in excess of out-of-pocket costs. Respondent has engaged of bad faith registration of domain names. 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 or constructive knowledge of Complainant’s rights in the CUB CADET based on Complainant’s trademark registration predating Respondent’s registration of the domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark CUB CADET dating back to 1983.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a website that displays pay-per-click links, some to competing products. Further, it is offering the disputed domain name for sale and it has engaged in a pattern of bad faith registration and use of domain names.
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 disputed domain name wholly incorporates Complainant’s mark, merely adding the generic term “parts”. Similar changes in a registered mark have failed to distinguish a domain name sufficiently for the purposes of Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). The Panel therefore finds that the <cubcadetparts.org> domain name is confusingly similar to the CUB CADET mark under Policy ¶ 4(a)(i).
Complainant has not authorized or licensed Respondent to use its mark. Respondent is not commonly known by the disputed domain name: absent a reply, 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). Here, the WHOIS information for the disputed domain name lists the registrant as “Hush Whois Protection Ltd.”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving website contains various pay-per-click links, including to products that compete with those of Complainant. Using a disputed domain name to display a parked webpage containing hyperlinks may not be a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). 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 TGI Friday’s of Minnesota, Inc. v. Tulip Company / Tulip Trading Company, FA 1691369 (Forum Oct. 10, 2016) (”Respondent uses the domain for a parking page displaying various links that consumers are likely to associate with Complainant, but that simply redirect to additional advertisements and links that divert traffic to third-party websites not affiliated with Complainant… The Panel here finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services.”). Therefore, the Panel finds that Respondent does not use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
Further, Respondent offers the disputed domain name for sale in excess of out-of-pocket costs. A general offer to sell a disputed domain name can demonstrate a lack or rights or legitimate interest in a disputed domain name per Policy ¶ 4(a)(ii). See AOL Inc. v. YourJungle Privacy Protection Service aka Whois Agent, FA1312001533324 (Forum Jan. 17, 2014) (“Respondent has offered the <aoljobsweek.com> domain name for sale to the general public, which demonstrates that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”).
For all the above reasons, 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 website displays pay-per-click links, some to competing products. Using a disputed domain name to display hyperlinks competitive with and unrelated to a complainant can evince bad faith registration and use per Policy ¶¶ 4(b)(iii) and/or (iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”); see also Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or (iv).
Further, also as already noted, Respondent attempts to sell the disputed domain name for an amount in excess of out-of-pocket costs. This can demonstrate bad faith registration and use per Policy ¶ 4(b)(i). See Staples, Inc. v. lin yanxiao, FA1505001617686 (Forum June 4, 2015) (“Respondent’s offering to sell the disputed domain name to a third party (in this case, the general public) supports a finding of bad faith registration and use.”); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(i).
Finally, Respondent has engaged in a pattern of bad faith registrations of domain names: Complainant cites seven adverse UDRP decisions against Respondent. Evidence of prior adverse UDRP decisions against a respondent can be evidence of bad faith registration and use per Policy ¶ 4(b)(ii). See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”). Therefore, the Panel also finds bad faith registration and use per Policy ¶ 4(b)(ii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cubcadetparts.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 5, 2019
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