DECISION

 

The Orb Factory Limited v. cao guo wang

Claim Number: FA2608002239441

 

PARTIES

Complainant is The Orb Factory Limited ("Complainant"), represented by Armin Ghiam of HUNTON ANDREWS KURTH LLP, New York, USA. Respondent is cao guo wang ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <smushers-us.com>, registered with Zhengzhou Century Connect Electronic Technology Development 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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on August 13, 2026; Forum received payment on August 13, 2026.

 

On August 14, 2026, Zhengzhou Century Connect Electronic Technology Development Co., Ltd confirmed by e-mail to Forum that the <smushers-us.com> domain name is registered with Zhengzhou Century Connect Electronic Technology Development Co., Ltd and that Respondent is the current registrant of the name. Zhengzhou Century Connect Electronic Technology Development Co., Ltd has verified that Respondent is bound by the Zhengzhou Century Connect Electronic Technology Development 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 August 27, 2026, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of September 16, 2026 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@smushers-us.com. Also on August 27, 2026, 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 17, 2026, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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

Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Chinese, thereby making the language of the proceedings Chinese.

 

Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. 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. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), 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.").

 

In the present case, Respondent has received the Notice and Commencement Notification in Chinese and has chosen not to respond to the Complaint. The resolving website is in English. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it has established common law rights in SMUSHERS through public use and recognition of the mark. Before Respondent registered the disputed domain name, Complainant had extensively promoted the current SMUSHERS line to both the toy industry and the consuming public. It displayed SMUSHERS at the New York Toy Fair in February 2026 and LA Toy Fair in April 2026, and promoted the products through Instagram, TikTok, its website, customer presentations, MarkeTime, Faire, and Amazon.com. On April 14, 2026, Complainant publicly launched the current line through its official social-media accounts with content expressly introducing SMUSHERS. That launch generated substantial consumer engagement: Complainant's Instagram content received approximately 297,000 views, 12,700 likes and reactions, 753 reposts, and 2,200 shares, while its TikTok content received approximately 983,000 views, 82,400 likes, 652 comments, 8,380 shares, and 6,918 saves. In total, SMUSHERS promotional content generated approximately 1.8 million views through May 18, 2026. SMUSHERS also received substantial independent retailer and consumer recognition before Respondent registered the disputed domain name. Retailers across geographically dispersed markets publicly promoted the products by the SMUSHERS name, including posts announcing that "Smushers have landed," that SMUSHERS were "BACK in stock," and that retailers had experienced a "SMUSHERS overload"; several retailers imposed purchase limits, prohibited holds, or warned that the products could quickly sell out. Consumers and independent creators likewise identified and sought the products as SMUSHERS: a May 8 post displaying SMUSHERS at Five Below received approximately 52,000 views; a May 11 post describing the "Smushers squishy" as "10/10" received approximately 5,674 likes; and a May 15 post identified the products as "new SMUSHERS by Orb." Retailer posts also generated consumer questions about where SMUSHERS could be found and whether they remained available. Thus, before Respondent's May 19, 2026 registration, retailers and consumers were already using SMUSHERS to identify Orb's product line and actively seeking the products under that name. Before May 19, 2026, Complainant had sold and shipped 112,656 SMUSHERS units to 296 customers; had 259,740 additional units on order from 126 customers; had received SMUSHERS orders from 397 customers in total; and estimates that the products were carried or ordered for approximately 3,500 retail locations across all 50 states. Complainant promoted SMUSHERS through major toy-industry trade shows, Instagram, TikTok, its website, customer presentations, MarkeTime, Faire, and Amazon.com, generating an estimated 1.8 million views before May 19, 2026. Complainant asserts common law trademark rights in its SMUSHERS mark.

 

Complainant alleges that the disputed domain name is confusingly similar to its SMUSHERS mark as the domain name incorporates the mark in its entirety and merely adds a hyphen and the geographic term "US", together with the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant's mark. Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to impersonate Complainant. The resolving website displays Complainant's mark and logo, and purports to offer Complainant's products. Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website impersonates Complainant. Respondent had actual knowledge of Complainant's mark. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has common law rights in the mark SMUSHERS preceding the first registration of the disputed domain name.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The disputed domain name was registered on May 19, 2026.

 

The resolving website impersonates Complainant, displaying its mark and logo, and purporting to offer Complainant's products.

 

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 3.1 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 asserts common law rights in its SMUSHERS mark. Common law rights are sufficient to establish rights in a mark under Policy ¶ 4(a)(i). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration if a complainant can establish common law rights in its mark). Common law rights may be established through evidence of secondary meaning in the mark such as longstanding use, evidence of an identical domain name, media recognition, and promotional material and advertising. See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (finding that Complainant had established its common law rights in the MARQUETTE GOLF CLUB mark with evidence of secondary meaning, including "longstanding use; evidence of holding an identical domain name; media recognition; and promotional material/advertising."). Here, Complainant used its SMUSHERS mark in various promotional and advertising materials well before the registration of the disputed domain name. Therefore, the Panel finds that Complainant established common law rights in its SMUSHERS mark, with rights predating the first registration of the disputed domain name.

 

The disputed domain name incorporates Complainant's SMUSHERS mark in its entirety, merely adding a hyphen and the geographic term "US", together with the ".com" generic top-level domain ("gTLD"). Under Policy ¶ 4(a)(i), such changes are generally insufficient in differentiating a disputed domain name from the mark it incorporates. See 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."); see also American Farm Bureau Fed'n and Texas Farm Bureau v. Michael Yeates, FA 1432672 (Forum Apr. 12, 2012) ("Complainant asserts that Respondent's <texasfarmbureau.net> domain name is confusingly similar to its FARM BUREAU mark. The Panel finds that Respondent's addition of the geographic term 'texas' fails to distinguish the disputed domain name from Complainant's mark."); see also Mrs. World Pageants, Inc. v. Crown Promotions, FA 94321 (Forum Apr. 24, 2000) (finding that punctuation is not significant in determining the similarity of a domain name and 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."). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: 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, FA 1571060 (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). Here, the WHOIS information for the disputed domain name lists the registrant as "cao guo wang". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

The resolving website impersonates Complainant: it displays Complainant's mark and logo, and purports to offer Complainant's products. This is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Edible Communities v. Thoreau,  FA 1158554 (Forum Apr. 16, 2008) ("[R]espondent's use of the disputed domain name [<theedibleaustin.com>] to pass itself off as [c]omplainant shows that [r]espondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(i) as well as Policy ¶ 4(c)(iii)."); see also Digg v. Digg , FA 1220833 (Forum Oct. 9, 2008) (finding no legitimate interest in respondent's use of the domain name <digg-inc.com> because "[r]espondent is attempting to pass itself off as [c]omplainant" and such "actions do not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)."). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, the resolving website impersonates Complainant. This can evince bad faith registration and use under Policy ¶ 4(a)(iii). See American International Group, Inc. v. Walter Busby d/b/a AIG Mergers and Acquisitions, FA 156251 (Forum May 30, 2003) (the resolving website gave every appearance of being associated or affiliated with Complainant's business); see also Mortgage Research Center LLC v. Russell Miranda, FA 993017 (Forum July 9, 2007) (Respondent is implying an affiliation with Complainant, and consumers seeking Complainant's products and services may become confused when encountering Respondent's website). Thus the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).

 

Further, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the resolving website displays Complainant's mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant's rights in its mark prior to Respondent's registration of the disputed domain name and that this constitutes bad faith under 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 <smushers-us.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: September 17, 2026