URS DEFAULT DETERMINATION


Dyson Technology Limited v. Privacy service provided by Withheld for Privacy ehf
Claim Number: FA2204001990991


DOMAIN NAME

<dyson-com.store>


PARTIES


   Complainant: Dyson Technology Limited Craig S Macpherson of Malmesbury, --, United Kingdom
  

   Respondent: Redacted for Privacy / Privacy service provided by Withheld for Privacy ehf of Reykjavik, Capital Region, II, IS
  

REGISTRIES and REGISTRARS


   Registries: DotStore Inc.
   Registrars: Namecheap

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.
   Saravanan Dhandapani, as Examiner

PROCEDURAL HISTORY


   Complainant Submitted: April 7, 2022
   Commencement: April 8, 2022
   Default Date: April 25, 2022
   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


   Procedural Findings:  
      Multiple Complainants: Multiple Complainants: No multiple Complainants are involved in this proceeding. This Complaint and findings relate to the domain name <dyson-com.store>. No domain name is dismissed from this Complaint.
      Multiple Respondents: Multiple Respondents: No multiple Respondents are involved in this proceeding. This Complaint and findings relate to the domain <dyson-com.store>. No domain name is dismissed from this Complaint.

   Findings of Fact: The case of the Complainant is as follows: The Complainant is part of a group of companies which operates worldwide and is engaged in the design, development and sale of innovative appliances, such as vacuum cleaners, hand dryers, fans, heaters, humidifiers, purifiers, hair dryers, hair stylers, hair straighteners, and lighting products. The annual turnover of the Complainant’s group is over £5 billion. It is a truly global business and trades in more than 80 countries. The Complainant is the owner of extensive goodwill and reputation in the trade mark DYSON trade mark. When used in relation to the listed products, DYSON denotes exclusively the business of the Complainant. The Complainant is the registered proprietor of a number of trade marks for the word DYSON around the world, all of which pre-date the registration of the domain name. The Complainant is the owner of the following trade marks: EU TMs Nos. 014000251 and 014000301 for the word mark DYSON in classes 8 and 11 respectively; and Russian TM No. 584875 for the word mark DYSON in class 11. It is well established that the extension should be ignored for the purposes of comparing the domain name and the earlier trade marks. The domain name comprises the element 'dyson' and the generic, non-distinctive element 'com', which will easily be confused with the '.com' gTLD. Since the distinctive element of the domain name is 'dyson' it is submitted that the domain name is confusingly similar to the earlier marks. The Respondent has no rights or legitimate interests in respect of the domain name. In particular: (a) The Complainant has not licensed or otherwise permitted the Respondent to use any of its trade marks, or to register any domain name incorporating the DYSON trade marks. (b) The Complainant has no legitimate reason to use the trade mark DYSON. (c) The Respondent has not been commonly known by the domain name. (d) The Respondent has acquired no trade mark rights in the trade mark DYSON. The Respondent has adopted a domain name which is confusingly similar to the Complainant’s DYSON trade mark registrations, which makes it inherently deceptive as to the source of the website. The use of the DYSON trade mark in the Respondent’s domain name suggests that there is an authorised connection between the parties which does not exist. The domain name is therefore inherently deceptive. The website offers numerous Dyson products at prices below the production cost of the genuine products. The complainant believe that the website has been set up to mislead consumers into placing orders and making payment, and that no products will be delivered to such consumers. It is to be inferred that the domain name was selected for the purpose of capturing internet users searching for goods sold by the Complainant’s group. The Respondent is using the domain name to mislead the Complainant’s customers in an effort to derive commercial gain.

  

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:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant 


The Complainant has proved by documentary evidence that they are the registered owner of trademark “DYSON". As noted, the disputed domain name <dyson-com.store> composes “DYSON”, “-com”, and “.store”. The word “DYSON” in disputed domain names is identical to Complainant’s registered mark “DYSON”. The ‘-com” and “.store” in disputed domain name, being a generic code Top-Level Domain name (gTLD), is suffix which are non-distinctive and are incapable of differentiating the disputed domain name from the Complainant’s registered trademark. Merely adding a suffix to a popular trademark cannot be the basis of a new trademark. Based on the “DYSON” being a registered trademark of the Complainant, the Examiner determines that URS 1.2.6.1(i) covers the domain name at issue in this Complaint.


[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant 


The Complainant owns registered mark “DYSON”. The Complainant’s adoption and first use of the registered trademark is for quite some time. In such case, the burden lies on the Respondent to prove that he/she has legitimate rights and/or interests in the disputed domain names. The Respondent is in default and has not filed any response. Although, the Complainant is not entitled to relief simply by default of the Respondent to submit a Response, the Examiner can however and does draw evidentiary inferences from the failure of the Respondent to respond. In view of the above, the Complainant has established a prima facie case of lack of rights and legitimate interest over the disputed domain name. Based on the record, the Respondent does not have rights or legitimate interests in the disputed domain names. Hence, the Examiner determines that URS 1.2.6.2 covers the domain names at issue in this Complaint and that the Respondent has no legitimate right or interest to the domain names.


[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant's web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of Registrant's web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant 


It is the specific case of the Complainant that the Respondent is not affiliated with Complainant in any manner and never authorized the Respondent to register or use any domain name incorporating “DYSON”. The disputed domain name is inactive and are being passively held. Thus, the Panel Examiner is of the firm view that using a confusingly similar domain name establishes the bad faith. It is well established that the registration and use of the disputed domain name must involve malafides where the registration and use of it was continues to be made in full knowledge of the Complainant’s prior rights in the “DYSON” registered mark and in circumstances where the registrant did not seek permission from the Complainant, as the owner of trademark, for such registration and use. Thus the Panel Examiner comes to irresistible determination that (i) the disputed domain name is identical to the Complainant’s “DYSON” pre-existing trademark rights; (ii) the Respondent’s name does not correspond to the disputed domain name; (iii) the Respondent was aware of the Complainant and its trademark when it registered the disputed the domain name; (iv) there is no indication of any authorization to use the Complainant’s mark. Hence, it is lawful to conclude that the disputed domain name was registered in bad faith. Thus, the Examiner determines that URS 1.2.6.3 (a) and (d) covers the domain name at issue in this Complaint and the domain name was registered and are being used in bad faith.


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:


  1. The Complaint was neither abusive nor contained material falsehoods. 

DETERMINATION


After reviewing the parties submissions, the Examiner determines that the Complainant has 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 SUSPENDED for the duration of the registration:

  1. dyson-com.store

 

Saravanan Dhandapani
Examiner
Dated: April 26, 2022

 

 

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