Meguiar’s Inc. v. Ernesto Duch
Claim Number: FA1606001681664
Complainant is Meguiar’s Inc. (“Complainant”), represented by Andrea Shannon of Norton Rose Fulbright US LLP, Texas, USA. Respondent is Ernesto Duch (“Respondent”), Spain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <meguiars.cleaning>, registered with Cronon AG.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 28, 2016; the Forum received payment on June 28, 2016.
On July 6, 2016, Cronon AG confirmed by e-mail to the Forum that the <meguiars.cleaning> domain name is registered with Cronon AG and that Respondent is the current registrant of the name. Cronon AG has verified that Respondent is bound by the Cronon AG 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 July 11, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 1, 2016 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@meguiars.cleaning. Also on July 11, 2016, 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 August 9, 2026, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, Meguiar’s Inc., has offered a variety of car cleaning products for over fifty years. In connection with its business providing car cleaning products Complainant has registered the MEGUIAR’S mark with multiple trademark agencies including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,885,764, registered Mar. 28, 1995). Respondent’s domain, <meguiars.cleaning>, is identical or confusingly similar to the MEGUIAR’S mark as the domain includes the entire mark and merely differs through the addition of the generic top-level domain (“gTLD”) “.cleaning.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has had no relationship with Complainant and there is no information showing that Respondent has been commonly known by the disputed domain name. Further, Respondent’s use of the disputed domain name prior to suspension by the Uniform Rapid Suspension System (“URS”), to display a generic holding page, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent registered and used the disputed domain name in bad faith. Respondent’s passive holding or parking of the domain demonstrates bad faith. Further, Complainant’s longtime use of the MEGUIAR’S mark to sell cleaning products in conjunction with registration of the <meguiars.cleaning> domain demonstrates knowledge at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was created on February 24, 2015.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration.
Furthermore, pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by the Complainant to suggest the likely possibility that Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark. The Complainant has adequately pled its rights in and to the trademark MEGUIAR’S. The Respondent arrives at the disputed domain name by merely using that mark in total and adding the gTLD “.cleaning”. This is insufficient to distinguish the disputed domain name from the Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’ trademark.
The Panel further finds that the Respondent has no rights or legitimate interests in or to the disputed domain name. The record is devoid of any evidence indicating that the Respondent is commonly known by the disputed domain name. The Respondent has no permission or license to use or register the disputed domain name. WHOIS information identifies respondent as, “Ernesto Dutch,” which does not appear to resemble the disputed domain.
Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. The disputed domain name is currently suspended, but prior to suspension the domain resolved to a holding or parked webpage. See Compl., at Attached Ex. F. Panels have held that prolonged failure to make an active use of a disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”).
As such, the Panel finds that the Respondent has no rights or legitimate interests in or to the disputed domain name.
Finally, the Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain name. While Complainant does not make any contentions that fall within the articulated provisions of Policy ¶ 4(b), the Panel notes that these provisions are meant to be merely illustrative of bad faith, and that Respondent’s bad faith may be demonstrated by ancillary allegations considered under the totality of the circumstances. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant argues that Respondent’s bad faith is evident from failing to make an active use of the disputed domain name. As stated previously, before the disputed domain name was locked it resolved to a website hosting a parked or inactive page. See Compl., at Attached Ex. F. Panels have held that failing to make an active use of a disputed domain can demonstrate a respondent’s bad faith. See Marsh Supermarkets Company, LLC, formerly known as Marsh Supermarkets, Inc. v. Choi Sungyeon, FA1312001532854 (Forum Feb. 25, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <marshsupermarkets.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because Respondent has failed to make an active use of the disputed domain name.”).
As such, the Panel finds that Respondent has demonstrated bad faith through neglecting to use the disputed domain.
Complainant argues that Respondent had actual and/or constructive knowledge of Complainant's rights in the MAGUIAR’S mark. Complainant argues that Complainant’s longstanding registration of the mark and Respondent’s registration of a domain name related to Complainant’s business indicates that Respondent had actual knowledge of Complainant's mark and rights. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, the Panel finds that, given the distinctiveness of the Complainant’s trademark and the totality of the circumstances, Respondent had actual knowledge of Complainant's mark and rights.
Therefore, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <meguiars.cleaning> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: August 14, 2016
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