3M Company v. Christian Suld Núñez Quintanar
Claim Number: FA1907001851622
Complainant is 3M Company (“Complainant”), represented by Norton Rose Fulbright US LLP, Minnesota, USA. Respondent is Christian Suld Núñez Quintanar (“Respondent”), Mexico.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <littmannonline.com>, registered with 1&1 IONOS SE.
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 A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 11, 2019; the Forum received payment on July 11, 2019.
On July 15, 2019, 1&1 IONOS SE confirmed by e-mail to the Forum that the <littmannonline.com> domain name is registered with 1&1 IONOS SE and that Respondent is the current registrant of the name. 1&1 IONOS SE has verified that Respondent is bound by the 1&1 IONOS SE 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 23, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 12, 2019 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@littmannonline.com. Also on July 23, 2019, 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 14, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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.
PRELIMINARY ISSUE: SUPPORTED LANGUAGE REQUEST
The Panel notes that Complainant requests that the language of this administrative proceeding proceed in the English language pursuant to UDRP Rule 11(a). Complainant makes this request in light of the Spanish language Registration Agreement. 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 foreign language included in the Registration Agreement. 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 foreign 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.”).
Here, Complainant requests that the Panel determine English to be the language of the proceeding for the following reasons: (a) the domain name <littmannonline.com> contains the English word “online;” (b) Respondent has evidenced familiarity with the English language by the exclusively English content on the <littmannonline.com> website; and (c) requiring the proceeding to be conducted in Spanish would result in delay and unnecessary expense of translating documents.
Pursuant to UDRP Rule 11(a), the Panel agrees that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is the owner of the LITTMANN mark and uses the mark in connection with the sale of stethoscopes. Complainant has rights in the LITTMANN mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 751,809, registered Jun. 25, 1963). Respondent’s <littmannonline.com> domain name is confusingly similar to Complainant’s LITTMANN mark as Respondent incorporates the mark in its entirety.
Respondent has no rights or legitimate interests in the <littmannonline.com> domain name. Respondent is not authorized or licensed to use the LITTMANN mark nor commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to feature advertisements and hyperlinks to Complainant’s competitors.
Respondent registered and uses the <littmannonline.com> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name where it features competing hyperlinks. Furthermore, Respondent had knowledge of Complainant’s rights in the LITTMANN mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that the <littmannonline.com> domain name was registered on December 14, 2018.
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”).
Complainant claims rights in the LITTMANN mark based upon registration of the mark with the USPTO (e.g., Reg. No. 751,809, registered Jun. 25, 1963). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). The Panel therefore holds that Complainant’s registration of the LITTMANN mark with the USPTO is sufficient to establish rights in the mark under Policy ¶ 4(a)(i).
Complainant next argues Respondent’s <littmannonline.com> domain name is confusingly similar to the LITTMANN mark, as the name fully incorporates the mark in its entirety. While Complainant does not specifically assert this, the disputed domain name also appears to contain the term “online” and a “.com” generic top-level domain (“gTLD”). Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable 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 Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). The Panel therefore determines that <littmannonline.com> domain name is confusingly similar to the LITTMANN mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent has no rights or legitimate interests in the <littmannonline.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the LITTMANN mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). The WHOIS information of record identifies the registrant of the at-issue domain name as “Christian Suld Núñez Quintanar,” and no information on the record indicates Respondent was authorized to register a domain name incorporating Complainant’s mark. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the <littmannonline.com> domain name.
Complainant further argues Respondent’s lack of rights or legitimate interests in the <littmannonline.com> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Complainant contends instead that the name resolves to a website which is being used to obtain click-through revenue by linking to third-party websites, some of which compete with Complainant’s business. Use of a domain name to link to a complainant’s competitors is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Complainant contends, and Respondent does not dispute, that the domain name resolves to a website displaying only pay-per-click links, some of which send users to competitor’s websites. The Panel therefore determines that Respondent does not have rights or legitimate interests in the <littmannonline.com> domain name.
Complainant also contends that Respondent’s bad faith is indicated by its use of the <littmannonline.com> domain name to link to third party websites, some of which compete with Complainant’s business. Use of a domain name to resolve to a page of third-party links, including competitive links, can demonstrate a respondent’s bad faith per Policy ¶ 4(b)(iv). See Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). Complainant contends, and Respondent does not contest, that the domain name resolves to a webpage displaying links to third party websites, some of which belong to competitors of Complainant. The fact that Registration has wholly incorporated the LITTMANN mark in its domain constitutes further evidence that Respondent had actual knowledge of Complainant’s rights in the mark and thus registered the domain name in bad faith. The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶ 4(b)(iv).
Complaint has therefore also 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 <littmannonline.com> domain name be TRANSFERRED from Respondent to Complainant
David A. Einhorn Panelist
Dated: August 22, 2019
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