MTD Products Inc v. Milen Radumilo
Claim Number: FA1909001861714
Complainant is MTD Products Inc ("Complainant"), represented by Christopher A. Corpus, Ohio, USA. Respondent is Milen Radumilo ("Respondent"), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cubcadetmower.com>, registered with Namesource LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 11, 2019; the Forum received payment on September 11, 2019.
On September 11, 2019, Namesource LLC confirmed by email to the Forum that the <cubcadetmower.com> domain name is registered with Namesource LLC and that Respondent is the current registrant of the name. Namesource LLC has verified that Respondent is bound by the Namesource LLC 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 16, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 7, 2019 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@cubcadetmower.com. Also on September 16, 2019, the Written Notice of the Complaint, notifying Respondent of the email 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, the Forum transmitted to the parties a Notification of Respondent Default.
On October 9, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the Forum's Supplemental Rules, and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a leading global manufacturer of outdoor power equipment, including lawnmowers, snow throwers, and other products. Complainant and a predecessor in interest have used the CUB CADET mark in connection with these products since 1960, and Complainant owns several longstanding U.S. trademark registrations for CUB CADET.
Respondent registered the disputed domain name <cubcadetmower.com> through a privacy registration service in July 2019. The domain name is being used to display links to landing pages consisting of links to business that appear to be competitors of Complainant. The domain name also displays a link with the text "Buy this domain." The domain name is listed for sale for $688 at Afternic, an aftermarket domain name marketplace. Complainant states that it has not licensed nor otherwise authorized Respondent to use its CUB CADET mark, and that Respondent is not commonly known by the disputed domain name. Complainant further notes that Respondent has been involved in numerous previous proceedings under the Policy, each resulting in a decision adverse to Respondent.
Complainant contends on the above grounds that the disputed domain name <cubcadetmower.com> is confusingly similar to its CUB CADET mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <cubcadetmower.com> incorporates Complainant's registered CUB CADET trademark (with the space omitted), adding the generic term "mower" and the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., MTD Products Inc v. Milen Radumilo, FA 1861380 (Forum Oct. 5, 2019) (finding <cubcadetsnowthrowers.com> confusingly similar to CUB CADET); MTD Products Inc v. Roger Smith / Smith Equipment & Kevin Smith / Smith Equipment, FA 1552064 (Forum May 10, 2014) (finding <cubmowers.com> confusingly similar to CUB CADET). Accordingly, the Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. It is being offered for sale, presumably by Respondent, and its sole apparent use has been to redirect Internet users to competitors of Complainant, presumably for Respondent's commercial gain. Such circumstances suggest that Respondent lacks rights or legitimate interests for purposes of the Policy. See, e.g., MTD Products Inc v. Milen Radumilo, FA 1861380, supra (finding lack of rights or interests in similar circumstances); Toronto-Dominion Bank v. Milen Radumilo, FA 1845434 (Forum July 7, 2019) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(ii), bad faith may be shown by evidence that the domain name was registered "in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent] ha[s] engaged in a pattern of such conduct." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
As in MTD Products Inc v. Milen Radumilo, FA 1861380, supra, there are circumstances in this case evincing bad faith under all four of the above provisions. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cubcadetmower.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 11, 2019
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