NATIONAL ARBITRATION FORUM

DECISION

Traeger Pellet Grills LLC v. li ding xi

Claim Number: FA2401002077406

PARTIES

Complainant is Traeger Pellet Grills LLC ("Complainant"), represented by Christopher M. Dolan of Barnes & Thornburg LLP, Illinois, USA. Respondent is li ding xi ("Respondent"), China.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <traegert-shop.com>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).

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.

James Bridgeman SC as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 2, 2024; Forum received payment on January 2, 2024.

On January 3, 2024, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to Forum that the <traegert-shop.com> domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 January 4, 2024, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of January 24, 2024 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@traegert-shop.com. Also on January 4, 2024, 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 January 26, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING

The Registrar has confirmed that the language of the agreement is Chinese. On January 4, 2024, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of January 24, 2024. Also on January 4, 2024, 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.

According to Paragraph 11 of the Rules, provides: "Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding."

The record shows that Respondent has been properly served with notice of this proceeding in the language of the registration agreement.

The evidence adduced shows that the website to which the disputed domain name resolves is the English language.

This panel is satisfied therefore that Respondent is on full notice of this proceeding and the consequences that follow from a failure to deliver a timely Response.

It may be inferred that Respondent is familiar with the English language, and that Complainant is not familiar with Chinese.

In the view of this Panel neither party is therefore prejudiced by this Complaint proceeding in the English language, whereas Complainant would be prejudiced if the language of the proceeding were to be Chinese.

For the above reasons, and having regard to the circumstances, this Panel exercises his discretion pursuant to Paragraph 11 of the Rules and determines that the language of this proceeding is properly English.

PARTIES' CONTENTIONS

A. Complainant

Complainant claims rights in the TRAEGAR trademark and service mark established by its ownership of the international portfolio of registrations described below and extensive use of the mark in its business primarily as a manufacturer of barbeque grills

Since at least as early as 1986, Complainant itself and through its predecessors-in-interest and affiliates has continuously and extensively engaged in marketing and selling its wood pellet grills and related goods and services under its famous TRAEGER mark.

Complainant alleges that the disputed domain is identical and/or confusingly similar to Complainant's TRAEGER trademark and service mark, as it incorporates Complainant's TRAEGER mark in its entirety and the only differences between the disputed domain and Complainant's TRAEGER mark are the addition the letter "t," a hyphen, the generic term "shop," together with the generic top-level domain ("gTLD") extension <.com>.

Complainant argues that such insignificant differences do nothing to distinguish the disputed domain from Complainant's famous TRAEGER mark, and panels established under the Policy have consistently held that such minor additions to a complainant's mark are insufficient to negate the confusingly similar aspects of the disputed domain name pursuant to Policy ¶ 4(a)(i). Radio Flyer, Inc. v. Santi, FA 1829773 (Forum Mar. 18, 2019) (finding the <radioflyerwagon.com> domain to be confusingly similar to the RADIO FLYER mark).

Complainant next alleges that Respondent has no rights or legitimate interests in the disputed domain name, arguing that

· Respondent has never been known or referred to as TRAEGER or any variation thereof;

· there is no other entity in the worldwide barbeque grill industry, apart from Complainant, that is known as TRAEGER. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as "Bhawana Chandel," and nothing in the record showed that that respondent was authorized to use a UDRP Complainant's mark in any manner);

· Respondent is not affiliated with, licensed or otherwise authorized by Complainant to use the TRAEGER mark, see Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark);

· Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services; and

· Respondent has registered the disputed domain name using a privacy service to conceal its identity, and the WHOIS information for the disputed domain name does not identify Respondent's name, thus keeping Respondent's identity private, see Save On Energy, LLC v. Joseph Crono, FA 1496896 (Forum June 17, 2013) (stating "[t]he fact that Respondent registered the domain name using a privacy service to conceal his identity is by itself evidence that Respondent has no rights or legitimate interests.");

· there is no indication that Respondent or any business or other organization owned or controlled by Respondent has ever been commonly known by or referred to as the disputed domain name or that the disputed domain name is Respondent's legal name;

· screen captures of Complainant's own website and the website to which the disputed domain name resolves, which are attached hereto as exhibits to the Complaint, show that the content of Respondent's website constitutes a clear and willful attempt to intentionally impersonate Complainant's site, as evidenced by the fact that Respondent's website does at least the following, with no permission from Complainant, to knowingly create the false impression that Respondent's Website is Complainant's official TRAEGER website, or at a minimum, is a website authorized and/or associated with Complainant:

o prominently displays the TRAEGER mark and logo;

o displays Complainant's copyrighted photos of the products Complainant offers under the TRAEGER mark and related narrative text copied from the TRAEGER website;

o displays Complainant's phone number (1-800-TRAEGER) on the "Contact Us" page of Respondent's website;

· Respondent's unauthorized use of the TRAEGER mark in the disputed domain and on Respondent's website to intentionally create the false impression that Respondent's website is Complainant's official TRAEGER website causes Internet users searching for the official TRAEGER website to mistakenly believe Respondent's website is affiliated with or hosted, sponsored, or authorized by Complainant, when that is not the case.

Complainant adds that Respondent's website is intentionally designed to deceive Internet users as to the source of the ebsite and/or the goods purportedly offered for sale through the site, thus, it follows that Respondent is not using the disputed domain in connection with a bona fide offering of goods or services or a noncommercial fair use. Logitech International S.A. v. Alexander Walker, FA 1860966 (Forum Sept. 13, 2019) (finding no rights or legitimate interest where Respondent uses the domain name to create a false impression that it and its resolving website are affiliated with or hosted by Complainant).

Complainant next alleges that Respondent registered and is using the disputed domain name in bad faith because (1) the disputed domain name is identical and/or confusingly similar to Complainant's famous TRAEGER mark; (2) Respondent had constructive and/or actual notice of Complainant's rights to the TRAEGER mark prior to registering and using the Disputed Domain; and (3) Respondent is using Complainant's TRAEGER mark in an attempt to attract Internet users to Respondent's website for its own financial gain.

Complainant argues that by using a domain name that is confusingly similar to Complainant's famous and registered TRAEGER mark, it is clear that Respondent registered the Disputed Domain primarily for the purpose of deceiving consumers as to the source, sponsorship, affiliation, or endorsement of Respondent's website and thereby disrupting Complainant's business. This constitutes bad faith registration and use under Policy 4(b)(iii).

Complainant submits that when Respondent registered the disputed domain name in 2023, Complainant had already been using its TRAEGER mark for more than 27 years and owned at least 15 United States federal registrations for the TRAEGER mark and as a result of Complainant's extensive investment in the TRAEGER mark, widespread publicity and recognition of the mark, and sales of the Complainant's goods and services under the mark, the TRAEGER mark had become famous long before Respondent's registration of the disputed domain name. This evidence strongly indicates that Respondent had constructive, if not actual, notice of Complainant's rights to the famous TRAEGER mark prior to the registration of the disputed domain name.

Additionally, given the appearance of Respondent's website, including the unauthorized use of the TRAEGER mark and images of Complainant's TRAEGER-branded products copied from the TRAEGER website, in what is a clear attempt to pass off Respondent's website as Complainant's official TRAEGER website, it is undeniable that that Respondent had actual knowledge of Complainant and Complainant's TRAEGER mark prior to registering and using the Disputed Domain. This is clear evidence of Respondent's bad faith. See Wahl Clipper Corporation v. David W Craft male, FA 1968884 (Forum Nov. 22, 2021) (finding bad faith use and registration of <wahlusa.shop> domain where registrant used domain for a website "mimicking" Complainant's official website and had actual knowledge of Complainant's rights in the WAHL mark).

Moreover, Complainant argues that Respondent's unauthorized use of Complainant's TRAEGER mark and other intellectual property to attract Internet consumers to Respondent's website using the disputed domain name without Complainant's authorization for Respondent's own financial gain further evidences Respondent's bad faith.

B. Respondent

Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant is the owner of the TRAEGER trademark and service mark for which it owns an international portfolio of registrations, including the following , which it uses in its business as a manufacturer of wood pellet barbeque grills and providing related goods and services:

· United States of Americal registered trademark TRAEGER registration number 3244718, registered on the Principal Register on May 22, 2007 for goods in international classes 4, 11, 21, 30;

· United States of Americal registered trademark TRAEGER, registration number 4082237, registered on the Principal Register on January 10, 2012 for goods in international class 11:

· United States of America registered service mark TRAEGER, registration number 4559448, registered on the Principal Register on July 1, 2014, for services in class 35.

Complainant has an established Internet presence and maintains its official website at <www.traeger.com>.

The disputed domain name <traegert-shop.com> was registered on April 23, 2023 and resolves to a website that mimics and purports to impersonate Complainant's official website by copying the content including the images, look and feel.

There is no information about Respondent except for that provided in the Complaint, as amended, the Registrar's WhoIs and the response from the Registrar to Forum, verifying for the purposes of this proceeding, that Respondent, whose identity is concealed on the published WhoIs, is the registrant of the disputed domain name.

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

Complainant has provided uncontested evidence to prove that on the balance of probabilities it has rights in the TRAEGER mark, established by its ownership of its portfolio of trademark- and service mark- registrations described above.

The disputed domain name <traegert-shop.com> consists of Complainant's mark in its entirety, albeit with the addition of the letter "t" in combination with a hyphen and the element "shop" together with and the generic Top Level Domain ("gTLD") extension <.com>.

Complainant's TRAEGER mark is the dominant in element and clearly recognizable within the disputed domain name. The addition of the letter "t", placed as it is at the end of Complainant's mark, the hyphen and the descriptive, generic element "shop", neither in combination nor individually add any distinguishing character to the disputed domain name.

The gTLD extension <.com> would be considered by Internet users as a necessary technical requirement for a domain name and therefore does not prevent a finding of confusing similarity between the disputed domain name and Complainant's TRAEGER mark.

This Panel finds therefore that the disputed domain name <traegert-shop.com> is confusingly similar to the TRAEGER mark in which Complainant has rights and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).

Rights or Legitimate Interests

In its submissions Complainant has made out an uncontested prima facie case that the Respondent has no rights legitimate interests in the disputed domain name.

It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.

Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name.

Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Complainant has adduced convincing uncontested evidence that it owns and has used the TRAEGER mark since at least May 22, 2007 when the mark was first registered, whereas the confusingly similar disputed domain name was not created until April 23, 2023.

Given the content and appearance of Respondent's website, including the unauthorized use of the TRAEGER mark and images of Complainant's TRAEGER-branded products copied from the TRAEGER website, in what is a clear attempt to pass off Respondent's website as Complainant's official TRAEGER website, on the balance of probabilities the registrant of the disputed domain name had actual knowledge of Complainant and Complainant's TRAEGER mark prior to registering and using the disputed domain name.

TRAEGER is a distinctive mark and it is implausible that the registrant chose and registered the disputed domain name which incorporates Complainant's mark, albeit with the addition of the letter "t" without knowledge of Complainant, its rights and its mark.

Any doubt about this finding is addressed by the fact that, notwithstanding that the registrant of the disputed domain name purports to be based in China, and the disputed domain name has been registered with a Chinese registrar, the disputed domain name resolves to a website which mimics Complainant's English language website and is clearly intended to impersonate Complainant and to attract and divert Internet traffic intended for the Complainant.

On the balance of probabilities, the disputed domain name was chosen and registered to target and take predatory advantage of Complainant's reputation and its goodwill in the TRAEGER mark.

This Panel finds therefore the disputed domain name was registered in bad faith. This finding is supported by the fact that the registrant of the disputed domain name engaged in typosquatting by registering a misspelling of Complainant's mark within in the disputed domain name by gratuitously adding the letter "t" to the mark.

The uncontested evidence adduced by the Complainant further shows that the Respondent is using the disputed domain name as the address of a website to mimic and purport to impersonate Complainant as described above.

Such intentional unauthorized use of the TRAEGER mark within the disputed domain name in an attempt to attract, for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's web site constitutes use of the disputed domain name in bad faith for the purposes of the Policy.

Additionally, by using the disputed domain name, Complainant is engaging in typosquatting as described above, which in itself is evidence of registration and use of the disputed domain name in bad faith.

As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has therefore succeeded in the third element of the test in Policy ¶ 4(a)(iii).

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 <traegert-shop.com> domain name be TRANSFERRED from Respondent to Complainant.

_________________________________________

James Bridgeman SC, Panelist

Dated: January 28, 2024