OMS Investments, Inc. v. 刘迎欢
Claim Number: FA2212002022462
Complainant is OMS Investments, Inc. (“Complainant”), represented by Robert J. Morgan of Scotts Miracle-Gro, Ohio. Respondent is 刘迎欢 (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aerogardenes.com>, registered with DNSPod, Inc..
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 Neil Anthony Brown KC as Panelist.
Complainant submitted a Complaint to Forum electronically on December 1, 2022; Forum received payment on December 1, 2022. The Complaint was submitted in English.
On December 2, 2022, DNSPod, Inc. confirmed by e-mail to Forum that the <aerogardenes.com> domain name is registered with DNSPod, Inc. and that Respondent is the current registrant of the name. DNSPod, Inc. has verified that Respondent is bound by the DNSPod, 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 December 6, 2022, Forum served the Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of December 27, 2022 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@aerogardenes.com. Also on December 6, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 30, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
The Panel notes that the Registration Agreement is written in the Chinese language, thereby making the language of the proceedings Chinese. Alternatively, the Panel may decide that the proceeding should be conducted in another and more appropriate language and therefore to continue the case with the English-language submission of the Complaint.
Complainant submits that because Respondent is conversant and proficient in English, the proceeding should be conducted in English. The Panel has the discretion under UDRP Rule 11(a) to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v Onetz, FA 96196 (Forum Feb. 12, 2001 (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). Complainant contends Respondent’s disputed domain name uses Latin letters to create a slight misspelling of an English language trademark, the disputed domain name resolves to a website which contains English words, and the resolving website contains links to other English websites, all of which indicates that Respondent is capable of understanding English.
Pursuant to Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest that the Respondent is conversant and proficient in the English language. After considering all of the circumstance of the case, the Panel decides that the proceeding should be conducted in the English language. The matter may therefore go forward on that basis.
A. Complainant
Complainant made the following contentions.
Complainant manufactures and sells a variety of home indoor gardening units and related products. Complainant submits that it has rights in the AEROGARDEN mark based upon registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 6,069,037 registered June 2, 2020) and other trademark agencies. See Compl. Ex. E. Respondent’s <aerogardenes.com> domain name is confusingly similar to Complainant’s mark because it contains the AEROGARDEN mark in its entirety, merely adding the letters “es” for the effect of pluralization and the generic top-level domain (“gTLD”) “.com” to form the disputed domain name.
Respondent does not have rights or legitimate interests in the <aerogardenes.com> domain name. Respondent is not licensed or authorized to use Complainant’s AEROGARDEN mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a webpage that redirects internet traffic to third-party sites using click-through links.
Respondent registered and uses the <aerogardenes.com> domain name in bad faith. Respondent uses the disputed domain name to deceive consumers and disrupt Complainant’s business. Additionally, Respondent collects click-through fees by redirecting internet traffic to third-party sites for commercial gain. Finally, Respondent registered the disputed domain name with constructive or actual knowledge of Complainant’s rights in the AEROGARDEN mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company and an affiliate of The Scotts Company LLC, which is the world’s largest marketer of branded lawn and garden products. The Scotts Company LLC is the licensee of various intellectual property assets owned by Complainant, including the AEROGARDEN trademarks that Complainant relies on is this proceeding by virtue of its status as an affiliate of The Scots Company LLC . Complainant and The Scots Company LLC, under the name “AeroGarden.” manufacture and sell a variety of home indoor gardening units and related products. Other international trademark registrations for AEROGARDEN are in the name of Complainant.
2. Complainant has established its rights in the AEROGARDEN mark based upon the registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 6,069,037 registered June 2, 2020) and several other AEROGARDEN marks registered with other trademark agencies.
3.Respondent registered the <aerogardenes.com> domain name on January 18, 2022.
4. Respondent has caused the disputed domain name to resolve to a webpage that redirects internet traffic to third-party sites using click-through links.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant is a United States company and an affiliate of The Scotts Company LLC, which is the world’s largest marketer of branded lawn and garden products. The Scotts Company LLC is the licensee of various intellectual property assets owned by Complainant, including the AEROGARDEN trademarks that Complainant relies on is this proceeding by virtue of its status as an affiliate of The Scots Company LLC . Complainant and The Scots Company LLC , under the name “AeroGarden.”, manufacture and sell a variety of home indoor gardening units and related products. Complainant therefore submits that it has rights in the AEROGARDEN mark based upon registration of the mark with the USPTO (e.g., Reg. No. 6,069,037 registered June 2, 2020) and other trademark agencies worldwide. See Compl. Ex. E. The Panel agrees with this contention and finds that Complainant has an interest in the AEROGARDEN mark sufficient to give it standing to bring this Complaint. In any event the Panel has examined copies of various registrations for AEROGARDSEN and finds that their registered owner is Complainant itself, namely OMS Investments, Inc. Registration of a mark with multiple trademark agencies is considered a valid showing of rights under Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”); see also State Farm Mutual Automobile Insurance Company v. Henry Francis, FA 1738716 (Forum July 28, 2017) (acknowledging complainant’s rights in a mark when it had registered the mark with the United States Patent and Trademark Office and the Canadian Intellectual Property Office). Since Complainant has provided evidence of registration of the AEROGARDEN mark with the USPTO and other agencies, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s AEROGARDEN mark. Complainant contends that Respondent’s <aerogardenes.com> domain name is confusingly similar to Complainant’s AEROGARDEN mark. Misspelling a mark through added letters and merely attaching a gTLD is not enough to distinguish the disputed domain name from the mark incorporated therein per Policy ¶ 4(a)(i). See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Here, the disputed domain name incorporates the AEROGARDEN mark in its entirety, merely adding the letters “es” and the gTLD “.com”. Therefore, the Panel finds that the disputed domain name is confusingly similar to the AEROGARDEN mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s AEROGARDEN mark and to use it in its domain name adding only the letters “es” to the mark which cannot negate a finding of confusing similarity;
(b) Respondent registered the disputed domain name on January 18, 2022;
(c) Respondent has caused the disputed domain name to resolve to a webpage that redirects internet traffic to third-party sites using click-through links;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent does not have rights or legitimate interests in the <aerogardenes.com> domain name because Respondent is not licensed or authorized to use Complainant’s AEROGARDEN mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.). The WHOIS information for the disputed domain name lists the registrant as “刘迎欢.” See Registrar Verification Email. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent redirects internet traffic to third-party sites using click-through links. Using a disputed domain name to offer sponsored links to third-party sites is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”); see also The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018) (“Respondent’s confusingly similar <esecuretdbank.com> domain name references a website displaying links to competing third parties as well as links to Complainant and various unrelated third parties. Using the domain name in this manner shows neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Here, Complainant has provided screenshots of the disputed domain name’s resolving site, displaying the aforementioned links as well as images owned by Complainant. See Compl. Ex. F. Therefore, the Panel finds that Respondent does not use the disputed domain name for any bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent registered and uses the <aerogardenes.com> domain name in bad faith because Respondent uses the domain to deceive consumers and disrupt Complainant’s business. Providing links to competing sites may disrupt a complainant’s business and be evidence of bad faith under Policy ¶ 4(b)(iii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Am. Airlines, Inc. v. Tex. Int’l Prop. Assoc., FA 914854 (Forum Apr. 10, 2007) (holding that where the respondent’s website featured hyperlinks to competing websites and included a link to the complainant’s website, the respondent’s use of the <redeemaamiles.com> domain name constituted disruption under Policy ¶ 4(b)(iii)). Here, Complainant has provided evidence of the disputed domain name resolving to a page which displays the third-party links, as well as screenshots of the resulting third-party sites which purport to sell Complainant’s products. See Compl. Ex. F and G. Thus, as the Panel agrees, it finds Respondent has acted in bad faith pursuant to Policy ¶ 4(b)(iii).
Secondly, Complainant submits that Respondent collects click-through fees by redirecting internet traffic to third-party sites. Using a disputed domain name for commercial gain is indicative of bad faith registration and use under Policy ¶ 4(b)(iv). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent registered and used the domain name in bad faith under Policy ¶ 4(b)(iv) where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business); 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.”). The Panel recalls the screenshots provided by Complainant which display the sponsored links and resulting third-party sites. See Compl. Ex. F and G. As such, the Panel finds Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Thirdly, Complainant argues Respondent registered the disputed domain name with constructive or actual knowledge of Complainant’s rights in the AEROGARDEN mark. Actual knowledge can adequately demonstrate bad faith according to Policy ¶ 4(a)(iii). See WordPress Foundation v. mich delorme / mich d dots tlds, FA1410001584295 (Forum, Nov. 25, 2014) (“Because Respondent here relies on the WORDPRESS mark in the disputed domain name and also makes use of Complainant’s services at the resolving page, the Panel finds that Respondent had actual knowledge of Complainant’s mark, and that such knowledge evidences Policy ¶ 4(a)(iii) bad faith.”). To support this submission, Complainant points to having used its mark for more than 20 years and owning several trademark registrations before Respondent registered the disputed domain name, as well as to the widespread publicity and recognition of the AEROGARDEN mark. See Compl. Pg. 9. As such, the Panel finds that Respondent had actual knowledge of Complainant’s rights in its mark, which supports a finding of bad faith under Policy ¶ 4(a)(iii) which the Panel now makes.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aerogardenes.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown KC
Panelist
Dated: December 31, 2022
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