DECISION

 

The Chemours Company FC, LLC v. Jifeng Huang / Coolmate Technology Corp

Claim Number: FA2402002083046

 

PARTIES

Complainant is The Chemours Company FC, LLC ("Complainant"), represented by Renee Reuter, Missouri, USA. Respondent is Jifeng Huang / Coolmate Technology Corp ("Respondent"), New York, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <freonstation.com> and <freonex.com>, registered with IONOS SE.

 

PANEL

The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.

 

Terry F. Peppard as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 8, 2024; Forum received payment on February 8, 2024.

 

On February 13, 2024, IONOS SE confirmed by e-mail to Forum that the <freonstation.com> and <freonex.com> domain names are registered with IONOS SE and that Respondent is the current registrant of the names. IONOS SE has verified that Respondent is bound by the IONOS SE 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 February 20, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 11, 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 the attention of postmaster@freonstation.com and postmaster@freonex.com. Also on February 20, 2024, 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 March 12, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Terry F. Peppard as sole Panelist in this proceeding.

 

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 names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant is engaged in the business of making and marketing chemical compounds in the form of refrigerants, propellants, solvents and related products for general use in industry.

 

Complainant holds a registration for the trademark FREON, on file with the United States Patent and Trademark Office ("USPTO") as Registry No. 952,532, registered February 6, 1973, and renewed most recently as of August 7, 2023.

 

Complainant does business online at the address <freon.com>.

 

Respondent registered the domain name <freonex.com> on January 25, 2022, and the domain name <freonstation.com> on August 2, 2023.

 

Both domain names are confusingly similar to Complainant's FREON trademark.

 

Complainant has not granted to Respondent permission to use its FREON mark in a domain name.

 

Respondent has no plausible legitimate use for either of the domain names.

 

Both domain names resolve to websites employed to promote the sale of goods and services in competition with the business of Complainant.

 

Respondent has neither any rights to nor any legitimate interests in either of the domain names.

 

Respondent knew of Complainant and its rights in the FREON mark when it registered the domain names.

Respondent's use of the domain names disrupts Complainant's business.

 

Respondent both registered and now uses the domain names in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

(1)       the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights; and

(2)       Respondent has no rights to or legitimate interests in respect of either of the domain names; and

(3)       the same domain names have been registered and are being used by Respondent in bad faith.

 

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:

 

i.                      the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

ii.                      Respondent has no rights to or legitimate interests in respect of the domain name; and

iii.                      the domain name has been registered and is being used by Respondent in bad faith.

 

In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent's failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). But see 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

By virtue of its registration of the FREON trademark with a national trademark authority, the USPTO, Complainant has established that it has rights in that mark sufficient to satisfy the requirement of Policy ¶ 4(a)(i) that it demonstrate standing to pursue its claim against Respondent in this proceeding.  See, for example, Liberty Global Logistics, LLC v. damilola emmanuel, FA 1738536 (Forum Aug. 4, 2017):

 

Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.

 

Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent's <freonex.com> and <freonstation.com> domain names are each confusingly similar to Complainant's FREON trademark. Both domain names incorporate the mark in its entirety, with only the addition of a generic term ("ex" in one of them and "station" in the other), plus the generic Top Level Domain (".com"). These alterations of the mark, made in creating the domain names, do not enable them to escape the realm of confusing similarity under the standards of the Policy.  See, for example, Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum Sept. 27, 2002):

 

[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.

 

This is because every domain name requires a gTLD or other TLD.

 

As to the generic terms added to Complainant's FREON mark in creating the domain names, "station" evokes the image of a station for the filling or refilling of refrigerant tanks, while "ex" is evidently intended as a contraction of the word "express," implying rapid service in the filling or refilling of refrigerant tanks. Each of these terms thus relates to an aspect of Complainant's business, and each reinforces the confusing similarity of the two domain names in relation to Complainant's mark.

See, for example, Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that adding to the mark of a UDRP complainant a gTLD and the generic term "finance," which described that complainant's financial services business conducted under the mark, did not distinguish the resulting domain name from the mark under Policy ¶ 4(a)(i)). See also MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018):

 

The disputed domain name is confusingly similar to Complainant's mark as it wholly incorporates the … mark before appending the generic terms 'genuine' and 'parts' as well as the '.com' gTLD.

 

Rights or Legitimate Interests

Policy ¶4(a)(ii) requires that Complainant make a prima facie showing that Respondent has neither rights to nor legitimate interests in the either of the domain names <freonex.com> and <freonstation.com>, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum, Aug. 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006):

 

Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.

 

Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent's failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See, for example, Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent's failure to respond to a UDRP complaint allows a presumption that a complainant's allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain names that are cognizable under the Policy.

 

We begin by noting that there is nothing in the record before us even suggesting that Respondent has been commonly known by the either of the challenged domain names. The record does reflect, however, that Complainant has not authorized Respondent to use the FREON mark in a domain name. Moreover, the pertinent WHOIS information identifies the registrant of the two domain names only as "Jifeng Huang / Coolmate Technology Corp," which does not resemble either of them. On this record, we conclude that Respondent has not been commonly known by either of the domain names so as to have acquired rights to or legitimate interests in them within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (finding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent only as "Bhawana Chandel," and nothing in the record showed that that respondent was authorized to use a UDRP Complainant's mark).

                                                            

We next observe that Complainant asserts, without objection from Respondent, that both domain names resolve to websites employed to promote the sale of goods and services in competition with the business of Complainant. We may comfortably presume from the circumstances described in the Complaint that Respondent profits financially from this employment of the domain names.  This use is neither a bona fide offering of goods or services by means of the domain names under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of them under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in either of them as provided in those subsections of the Policy.

See, for example, Bank of America Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003):

 

Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i).

 

Specific to the remaining provision of ¶ 4(c), that found in subparagraph (iii), given Respondent's evident intent to profit from the use it makes of the domain names, we can only conclude that such use constitutes neither a legitimate noncommercial nor a fair use of them within the contemplation of that part of the Policy.

 

The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

It is plain from the record before us that Respondent was aware of Complainant and its rights in the FREON mark when it registered the <freonex.com> and <freonstation.com> domain names. It is equally plain from this fact alone that Respondent registered the domain names in bad faith. See, for example, Pavillion Agency, Inc. v. Greenhouse Agency, Ltd., D2000-1221 (WIPO Dec. 4, 2000), finding that disputed domain names were so obviously like the mark of a UDRP complainant that the registration of such similar domain names by anyone other than that complainant suggested opportunistic bad faith, and declaring that:

 

[T]here is a legal presumption of bad faith when Respondent reasonably should have been aware of Complainant's trademarks, actually or constructively.

 

We are also persuaded by the evidence presented with the Complaint that Respondent's registration and use of the two domain names is an attempt by Respondent to profit from the confusion their similarity to Complainant's marks is very likely to cause among Internet users seeking to do business with Complainant online. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent's bad faith in both the registration and use of the domain names. See, for example, AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith registration and use within the provisions of Policy ¶ 4(b)(iv) where a respondent's domain name, which was determined to be confusingly similar to the mark of a UDRP complainant, resolved to a website offering links to third-party websites marketing services similar to those of that complainant).

 

The Panel thus finds that Complainant has met its obligations of proof under Policy¶4(a)(iii).

 

DECISION

Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that relief requested must be, and it is hereby, GRANTED.

 

Accordingly, it is Ordered that each of the domain names <freonex.com> and <freonstation.com> be TRANSFERRED forthwith from Respondent to Complainant.

 

 

 

Terry F. Peppard, Panelist

Dated: March 22, 2024