MTD Products Inc v. shang jun feng
Claim Number: FA2004001891736
Complainant is MTD Products Inc (“Complainant”), represented by Christopher A. Corpus, United States. Respondent is shang jun feng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cubcadetexperience.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 11, 2020; the Forum received payment on April 13, 2020. The Complaint was submitted in both Chinese and English.
On April 14, 2020, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <cubcadetexperience.com> domain name is registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the name. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) 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 14, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 4, 2020 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@cubcadetexperience.com. Also on April 14, 2020, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On May 8, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings will be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <cubcadetexperience.com> domain name is confusingly similar to Complainant’s CUB CADET mark.
2. Respondent does not have any rights or legitimate interests in the <cubcadetexperience.com> domain name.
3. Respondent registered and uses the <cubcadetexperience.com> domain name in bad faith.
B. Respondent failed to file a Response in this proceeding.
Complainant, MTD Products Inc., is in the business of the design and manufacture of outdoor power equipment. Complainant holds a registration for the CUB CADET mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,066,180, registered June 3, 1997).
Respondent registered the <cubcadetexperience.com> domain name on March 30, 2020, and uses it to operate a webpage containing adult entertainment material and links.
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 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”).
The Panel finds that Complainant has rights in the CUB CADET mark under Policy ¶ 4(a)(i) based upon the registration with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <cubcadetexperience.com> domain name uses the CUB CADET mark and merely adds the generic word “experience” and the “.com” generic top-level domain (“gTLD”). The addition of generic or descriptive terms and a gTLD is insufficient to overcome the confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”). Accordingly, the Panel finds that Respondent’s <cubcadetexperience.com> domain name is confusingly similar to Complainant’s CUB CADET mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent does not have rights or legitimate interests in the <cubcadetexperience.com> domain name because Respondent is not commonly known by the disputed domain name. Respondent is not authorized to use Complainant’s CUB CADET mark. The WHOIS information of record identifies the registrant of the disputed domain name as “Shang jun feng.” Therefore, the panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights or legitimate interests in the domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant also argues that Respondent doesn’t use the disputed domain for a bona fide offering of goods or services or a legitimate noncommercial or fair use since Respondent uses the domain name to operate a webpage containing adult entertainment material and/or third-party links. The use of a disputed domain name to redirect users to a site containing adult material and/or pay-per-click links is not considered a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited-, FA 1603444 (Forum Mar. 19, 2015) (holding that, generally, a disputed domain which hosts adult-oriented material is not a bona fide offering of goods or services or a legitimate noncommercial or fair use). Complainant provides screenshots from website at <cubcadetexperience.com> featuring adult entertainment material and links that are presumably pay-per-click. Thus, the Panel finds that Respondent is not using the domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <cubcadetexperience.com> domain name in bad faith because Respondent uses the domain name to attract Internet users to its site for commercial gain. The use of a confusingly similar domain name to trade off the reputation of a trademark owner for commercial gain is evidence of bad faith registration and use per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Plain Green, LLC v. wenqiang tang, FA1505001621656 (Forum July 1, 2015) (finding that the respondent’s use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)). Complainant argues that Respondent is using the disputed domain name to trade off Complainant’s name and reputation. The Panel agrees and finds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(b)(iv). The Panel finds that the use of the disputed domain name to redirect users to its pornographic materials and links is also disruptive to Complainant’s business, which constitutes further bad faith under Policy ¶ 4(b)(iii).
Complainant claims that Respondent had knowledge of Complainant’s rights in the CUB CADET mark when it registered the disputed domain name, due to the fact that Complainant’s registration of the mark predates Respondent’s registration of the domain name. The Panel agrees and finds that this is further evidence that Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cubcadetexperience.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 9, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page