DECISION

 

Clean Simple Eats, LLC v. Zeng Fanqi

Claim Number: FA2308002059858

 

PARTIES

Complainant is Clean Simple Eats, LLC ("Complainant"), represented by Ryan D. Ricks of SNELL & WILMER L.L.P, Arizona, USA. Respondent is Zeng Fanqi ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <cleansimpleeatsus.com>, registered with Jiangsu Bangning Science & technology Co. Ltd.

 

PANEL

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.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on August 30, 2023; Forum received payment on August 30, 2023.

 

On August 31, 2023, Jiangsu Bangning Science & technology Co. Ltd. confirmed by e-mail to Forum that the <cleansimpleeatsus.com> domain name is registered with Jiangsu Bangning Science & technology Co. Ltd. and that Respondent is the current registrant of the name. Jiangsu Bangning Science & technology Co. Ltd. has verified that Respondent is bound by the Jiangsu Bangning Science & technology Co. Ltd. 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 1, 2023, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of September 21, 2023 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@cleansimpleeatsus.com. Also on September 1, 2023, the Chinese and English 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 in Chinese and English.

 

On September 22, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING

Pursuant to UDRP Rule 11(a) the Panel finds that persuasive evidence has been proffered by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. Notably, the domain name at-issue is in Latin script and is in English and resolves to a page offering products and services in English using U.S. currency. Further, Complainant is unable to communicate in Chinese and the privacy registration service used by Respondent to register the at-issue offers services in both English and Chinese. Requiring Complainant to translate the Complaint and accompanying documents into Chinese will also put an undue financial burden on Complainant and likely delay resolution of the dispute. Therefore, after considering the circumstances of the present dispute including Respondent's failure to respond, the Panel concludes that the proceeding should be conducted in English.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends as follows:

 

Complainant Clean Simple Eats, LLC owns and operates a meal planning service and provides meal planning products, nutritional supplements and powders, and related products throughout the United States via a website and mobile application.

 

Complainant has trademark rights in CLEAN SIMPLE EATS via the mark's registration with the USPTO. Respondent's <cleansimpleeatsus.com> domain name is confusingly similar to Complainant's trademark as the domain name contains Complainant's entire mark and merely includes the geographic descriptor "us"  and ".com" top-level domain name.

 

Respondent lacks rights and legitimate interest in the <cleansimpleeatsus.com> domain name. Respondent is not licensed or authorized to use Complainant's trademark. Respondent is impersonating Complainant to attract internet traffic and commerce meant for Complainant. Respondent is not known by the at-issue domain name and Respondent's use of the domain name to pass itself off as Complainant and address a webpage mimicking Complainant's website is not a bona fide  use of the domain name.

 

Respondent uses the at-issue domain name in bad faith to capitalize on the goodwill associated with the CLEAN SIMPLE EATS trademark by confusing internet users as to the sponsorship of the at-issue domain name and its website. Respondent had actual knowledge of Complainant's trademark when registering <cleansimpleeatsus.com>. The at-issue domain name includes Complainant's trademarks and addresses content identical to Complainant's website in an attempt to pass off as Complainant, even using copies of photographs and videos of Complainant's founders, and exactly copying content, videos and images from Complainant's website. Under the circumstances of this case, no contemplated legitimate active use of the domain name by the Respondent is plausible.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the CLEAN SIMPLE EATS mark.

 

Respondent is not affiliated with Complainant and has not been authorized to use Complainant's trademark in any capacity.

 

Respondent registered the at-issue domain name after Complainant acquired rights in the CLEAN SIMPLE EATS trademark.

 

Respondent uses the at-issue domain name to address a website mimicking Complainant's genuine website and there offers Complainant's products and services.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The at-issue domain name is confusingly similar to a mark in which Complainant has rights.

 

Complainant demonstrates rights in its CLEAN SIMPLE EATS mark from its registration of such mark with the USPTO. See Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) ("The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.").

 

Respondent's <cleansimpleeatsus.com> domain name is confusingly similar to Complainant's CLEAN SIMPLE EATS mark. The domain name consists of Complainant's entire trademark less its domain name impermissible spaces, followed by the geographic term "us," and with all followed by the ".com" top-level domain name. The differences between the <cleansimpleeatsus.com> domain name and Complainant's CLEAN SIMPLE EATS trademark are insufficient to distinguish the domain name from Complainant's mark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent's <cleansimpleeatsus.com> domain name is confusingly similar to CLEAN SIMPLE EATS. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.").

 

Rights or Legitimate Interests

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. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant's prima facie showing acts conclusively.

 

Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant's trademark in any capacity and as discussed below there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and "Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.").

 

The WHOIS information for <cleansimpleeatsus.com> indicates that "Zeng Fanqi" is the domain name's registrant and there is nothing in the record that tends to prove that Respondent is otherwise known by the <cleansimpleeatsus.com> domain name. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(iii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

Respondent uses the confusingly similar <cleansimpleeatsus.com> domain name to address a website that mimics Complainant's genuine website. There, Respondent offers Complainant's CLEAN SIMPLE EATS products and services. Respondent's use of <cleansimpleeatsus.com> in this manner is neither indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor of a non-commercial or fair use under Policy ¶4(c)(iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant's mark and various photographs related to the complainant's business); see also, Wolverine World Wide, Inc. v. Fergus Knox, FA 1627751 (Forum Aug. 19, 2015) (finding no bona fide offering of goods or legitimate noncommercial or fair use existed where Respondent used the resolving website to sell products branded with Complainant's MERRELL mark, and were either counterfeit products or legitimate products of Complainant being resold without authorization).

 

Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent's lack of rights and lack of legitimate interests in respect of the at-issue domain name.

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, bad faith circumstances are present which lead the Panel to conclude that Respondent acted in bad faith pursuant to the Policy.

 

Respondent's at-issue domain name addresses Respondent's <cleansimpleeatsus.com> website. The website mimics Complainant's genuine website and is used to assist Complainant in passing off as Complainant to deceive internet users into falsely believing that the domain name and its referenced website are sponsored by Complainant. Notably, Respondent's <cleansimpleeatsus.com> website promotes and purports to offer Complainant's CLEAN SIMPLE EATS products and services. Respondent's use of the confusingly similar domain name is disruptive to Complainant's business and designed to attract internet users so that Respondent may capitalize on the confusion Respondent created between its <cleansimpleeatsus.com> domain name and Complainant's CLEAN SIMPLE EATS trademark. Respondent's use of the <cleansimpleeatsus.com> domain name and referenced website demonstrates Respondent's bad faith registration and use of <cleansimpleeatsus.com> under Policy ¶ 4(b)(iii) and  Policy ¶ 4(b)(iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent's registration and use of the at-issue domain name, which displayed a website virtually identical to the complainant's website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also, ZIH Corp. v. ou yang lin q, FA 1761403 (Forum December 29, 2017) (finding bad faith where Respondent used the infringing domain name to disrupt Complainant's business by diverting Internet users from Complainant's website to Respondent's website where it offered competing printer products); see also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting internet users searching for the complainant to its own website and likely profiting).

 

Moreover, Respondent had actual knowledge of Complainant's rights in the CLEAN SIMPLE EATS mark when Respondent registered <cleansimpleeatsus.com> as a domain name. Respondent's actual knowledge is evident given the mark's notoriety and given Respondent's use of the domain name to pass itself off as Complainant and address a mimicked version of Complainant genuine website. See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) ("Complainant contends that Respondent's knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant's mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii)."); see also, Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name);

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <cleansimpleeatsus.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: September 24, 2023