DECISION

 

DRINK LMNT, INC. v. FanQi Zeng

Claim Number: FA2404002094092

 

PARTIES

Complainant is DRINK LMNT, INC. ("Complainant"), represented by Ryan Kaiser of Amin Wasserman Gurnani, LLP, Illinois, USA. Respondent is FanQi Zeng ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <drinklmntus.com> ("Domain Name"), registered with Chengdu West Dimension Digital Technology Co., Ltd.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on April 19, 2024; Forum received payment on April 19, 2024.

 

On April 23, 2024, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to Forum that the <drinklmntus.com> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital 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 April 24, 2024, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of May 14, 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@drinklmntus.com. Also on April 24, 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 May 15, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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

The language of the Registration Agreement in this case is Chinese.  The Complaint has been provided in English and Complainant has requested that the language of the proceeding be English. 

 

It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties.  Factors which previous panels have seen as particularly compelling are: WHOIS information which establishes Respondent in a country which would demonstrate familiarity with the English language, filing of a trademark registration with an entity which shows an understanding of the English language, and any evidence (or lack thereof) exhibiting Respondent's understanding of the language requested by Complainant.  See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language).  Further, the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party.  See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, "It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.") and Zappos.com, Inc. v. Zufu aka Huahaotrade, Case No. D2008-1191 (WIPO October 15, 2008) (holding that proceedings could be conducted in English even though the registration agreement was in Chinese where "the disputed domain resolves to a website [that] is exclusively in English, from which can be reasonably presumed that the Respondent has the ability to communicate in English in order to conduct his business over the website in English")

 

Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language.  The Domain Name contains an English word and has resolved to a website ("Respondent's Website") which is entirely in English. 

 

After considering the circumstances of the present case, including the material referred to above indicating that the Respondent is likely to be able to communicate in English, and noting that the Respondent has not made any request that the proceeding continue in Chinese, the Panel decides that the proceeding should be continued in the English language.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant is involved in the development, production and sale of electrolyte powders and drink mixtures (amongst other goods), which it offers from its official website at <drinklmnt.com>. Complainant has rights in the DRINK LMNT mark through its registration of the mark with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 7,078,700 registered on June 13, 2023). Respondent's <drinklmntus.com> domain name is identical or confusingly similar to Complainant's DRINK LMNT mark as it incorporates the mark while adding the geographic term "us" and the ".com" generic top-level domain ("gTLD").

 

Respondent lacks rights and legitimate interests in the <drinklmntus.com> domain name. Respondent is not commonly known by the Domain Name, nor has Complainant authorized or licensed Respondent to use its DRINK LMNT mark in the Domain Name. Respondent does not use the Domain Name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use. Rather, Respondent uses the Respondent's Website to pass itself off as Complainant by reproducing Complainant's DRINK LMNT mark and copyrighted photos from Complainant's official website for the purposes of offering competing products.  Furthermore, Respondent seeks to defraud customers who engage with the Respondent for goods under the misapprehension they are dealing with Complainant.

 

Respondent registered and uses the <drinklmntus.com> domain name in bad faith.  Respondent uses the confusingly similar nature of the Domain Name to disrupt Complainant's business by impersonating Complainant. Respondent uses the Domain Name to confuse internet users by resolving to a webpage that purports to offer the Complainant's goods but may actually be used to commit fraud.  Furthermore, Respondent registered the Domain Name with actual knowledge of Complainant's rights in the DRINK LMNT mark evidenced by the use of copyrighted material from the Complainant's official website on the Respondent's Website.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds trademark rights for the DRINK LMNT mark.  The Domain Name is confusingly similar to Complainant's DRINK LMNT mark.  Complainant has established that Respondent lacks rights or legitimate interests in the Domain Name and that Respondent registered and has used the Domain Name 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:

 

(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 rights in the DRINK LMNT mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g., Reg. No. 7,078,700 registered on June 13, 2023). Registration with the USPTO can sufficiently establish rights in a mark under Policy ¶ 4(a)(i).  See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a national trademark authority).

 

The Panel finds that the Domain Name is confusingly similar to the DRINK LMNT mark as it incorporates the entire DRINK LMNT mark while adding the geographic term "us" and the ".com" gTLD. Domain names which incorporate an entire mark are usually considered confusingly similar, while adding a descriptive term, such as a geographic term, and a gTLD is generally insufficient to create a distinction between a complainant's mark and a disputed domain name under Policy ¶ 4(a)(i).  See Dell Inc. v. SNAB Corporation, FA 1785051 (Forum May 30, 2018) (finding the inclusion of a geographic term did not distinguish the domain name and increased possible confusion, as "[t]he geographic term "hyderabad" is also suggestive of Complainant as Complainant has corporate offices in Hyderabad, India."); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable 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.").

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names."). The Panel holds that Complainant has made out a prima facie case.

 

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the DRINK LMNT mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where "Privacy Service" was listed as the registrant of the disputed domain name).  The WHOIS information of record lists "FanQi Zeng" as the registrant of record. Coupled with Complainant's unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).

 

The Domain Name is presently inactive but prior to the commencement of the proceeding resolved to the Respondent's Website which, through the reproduction of the DRINK LMNT mark and essentially the entire content of the Complainant's official website, including copyrighted photos of Complainant's products taken from Complainant's official website, passes itself off as an official website of the Complainant for the purpose of offering for sale electrolyte powders and related products in direct competition with Complainant's products. The use of a confusingly similar domain name to resolve to a webpage that purports to offer unauthorized versions of a complainant's goods does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use; indeed it provides a false impression that the Respondent is affiliated with or authorized by Complainant. See BALENCIAGA SA v. ling lin, FA 1768542 (Forum February 16, 2018) ("The disputed domain names incorporate Complainant's registered mark, and are being used for websites that prominently display Complainant's mark and logo, along with apparent images of Complainant's products, offering them for sale at discounted prices. The sites do not disclaim any connection with Complainant, and in fact seem to be designed to create an appearance of such a connection. Such use does not give rise to rights or legitimate interests."). See also Am. Int'l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant's mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).

 

Furthermore, the Complainant asserts that it is highly likely that Respondent's Website is being used in order to defraud members of the public, by convincing them to make payments to Respondent under the misapprehension they are dealing with the Complainant but then not provide them with the products that they ordered.  Complainant asserts that it has received complaints from customers who have ordered products from the Respondent's Website and then not received the goods despite making payment.  Such fraudulent conduct is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).  See Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) ("[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.").

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

The Panel finds on the balance of probabilities that, at the time of registration of the Domain Name (October 20, 2023), Respondent had actual knowledge of Complainant's DRINK LMNT mark since the Respondent's Website passes itself off as an official website of the Complainant including reproducing the Complainant's DRINK LMNT mark and copyrighted material. Furthermore, there is no obvious explanation, nor has one been provided, for an entity to register a domain name that contains the DRINK LMNT mark and use it to redirect visitors to a website selling goods in direct competition with the Complainant under the DRINK LMNT mark other than to take advantage of Complainant's reputation in the DRINK LMNT mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).

 

The Panel finds that Respondent registered and uses the Domain Name in bad faith to create confusion with Complainant's DRINK LMNT mark for commercial gain by using the confusingly similar Domain Name to resolve to a website that passes off as an official website of the Complainant and offers electrolyte products in direct competition with the Complainant's products.  In addition, the Panel also finds that Respondent registered and uses the Domain Name in bad faith as Respondent likely uses the Domain Name to impersonate Complainant in furtherance of a scheme to commit a fraud on members of the public.  Using a confusingly similar domain name to trade upon the goodwill of a complainant can evince bad faith under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA 1612750 (Forum May 13, 2015) ("The Panel agrees that Respondent's use of the website to display products similar to Complainant's, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv)."). See also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where "Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant's own website in order to confuse users into believing that Respondent is Complainant or is otherwise affiliated or associated with Complainant."). See also Google Inc. v. Domain Admin / Whois Privacy Corp., FA 1622862 (Forum Aug. 10, 2015) (finding that the respondent's apparent use of the disputed domain name in furtherance of a 'phishing' scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)).

The Panel finds Complainant has satisfied 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 <drinklmntus.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Nicholas J.T. Smith, Panelist

Dated: May 16, 2024