MTD Products Inc. v. Shulan Wu
Claim Number: FA1909001864170
Complainant is MTD Products Inc. (“Complainant”), represented by Christopher A. Corpus, Ohio, USA. Respondent is Shulan Wu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <clubcadet.com>, registered with UNIREGISTRAR CORP; Uniregistrar Corp.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 26, 2019; the Forum received payment on September 26, 2019.
On September 27, 2019, UNIREGISTRAR CORP; Uniregistrar Corp confirmed by e-mail to the Forum that the <clubcadet.com> domain name is registered with UNIREGISTRAR CORP; Uniregistrar Corp and that Respondent is the current registrant of the name. UNIREGISTRAR CORP; Uniregistrar Corp has verified that Respondent is bound by the UNIREGISTRAR CORP; Uniregistrar Corp 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 30, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 21, 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@clubcadet.com. Also on September 30, 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 24, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <clubcadet.com> domain name is confusingly similar to Complainant’s CUB CADET mark.
2. Respondent does not have any rights or legitimate interests in the <clubcadet.com> domain name.
3. Respondent registered and uses the <clubcadet.com> domain name in bad faith.
B. Respondent failed to file a Response in this proceeding.
Complainant designs, manufactures, and sells outdoor power equipment worldwide. Complainant holds a registration for the CUB CADET mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,252,738, registered July 12, 1983).
Respondent registered the <clubcadet.com> domain name on December 17, 2002, and fails to make an active use of the domain name.
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 Panel finds that the Complainant has rights in the CUB CADET mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <clubcadet.com> domain name incorporates Complainant’s mark and merely adds the letter “l” and the “.com” gTLD. The addition of a letter and a gTLD into an otherwise recognizable mark does not sufficiently distinguish a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See OpenTable, Inc. v. Above.com Domain Privacy, FA 1626187 (Forum Aug. 10, 2015 (“Respondent’s <oipentable.com> domain name is confusingly similar to the OPENTABLE mark under Policy ¶ 4(a)(i) because the disputed domain merely adds the letter ‘i’ . . . ”). Therefore, the Panel finds that Respondent’s <clubcadet.com> domain name is confusingly similar to Complainant’s CUB CADET mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent has no rights or legitimate interests in the <clubcadet.com> domain name, as Respondent is not commonly known by the disputed domain name. Respondent is not licensed or authorized by the Complainant to use Complainant’s mark. The WHOIS information of record identifies the Respondent as “Shulan Wu.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Complainant also argues that Respondent fails to use the <clubcadet.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant demonstrates that Respondent is inactively holding the disputed domain name. This does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. Therefore, the Panel finds that Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii). See CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <clubcadet.com> domain name in bad faith, as Respondent is disrupting Complainant’s business. Complainant provides a screenshot of the disputed domain name’s resolving webpage showing an empty webpage, confusing Internet users and suggesting an affiliation between Respondent and Complainant. The Panel agrees and finds that Respondent registered and used the <clubcadet.com> domain name in bad faith under Policy ¶ 4(b)(iii) and/or (iv). See Love City Brewing Company v. Anker Fog / Love City Brewing Company, FA 1753144 (Forum Nov. 27, 2017) (Finding that Respondent disrupts Complainant’s business by pointing Internet users to an expired webpage. This may create the perception that Complainant is closed, never existed, or is not a legitimate business. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii).); see also Phat Fashions, LLC v. Kruger, FA 96193 (Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though the respondent has not used the domain name because “it makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”).
Complainant also argues that Respondent is typosquatting in bad faith, by adding an extra letter to Complainant’s mark. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <clubcadet.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: October 25, 2019
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