Midea Group Co., Ltd. v. Milen Radumilo
Claim Number: FA2211002020515
Complainant is Midea Group Co., Ltd. (“Complainant”), represented by Paddy Tam of CSC Digital Brand Services AB, Sweden. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <midea.info>, registered with CommuniGal Communication 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 Forum electronically on November 16, 2022; Forum received payment on November 16, 2022.
On November 21, 2022, CommuniGal Communication Ltd. confirmed by e-mail to Forum that the <midea.info> domain name is registered with CommuniGal Communication Ltd. and that Respondent is the current registrant of the name. CommuniGal Communication Ltd. has verified that Respondent is bound by the CommuniGal Communication 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 November 23, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 13, 2022 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@midea.info. Also on November 23, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 19, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <midea.info> domain name is confusingly similar to Complainant’s MIDEA mark.
2. Respondent does not have any rights or legitimate interests in the <midea.info> domain name.
3. Respondent registered and uses the <midea.info> domain name in bad faith.
B. Respondent did not file a Response.
Complainant is an electrical appliance manufacturer and holds a registration for the MIDEA mark with the multiple governmental agencies, including the World Intellectual Property Organization (“WIPO”) (e.g. Reg. No. 751,860, registered December 19, 2000).
Respondent registered the <midea.info> domain name on June 29, 2022, and uses it for pay-per-click advertisements and offers it for sale.
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 MIDEA mark based on registration with the multiple governmental agencies, including WIPO. See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”)
Respondent’s <midea.info> domain name wholly incorporates the MIDEA mark and merely adds the “.info” gTLD. This changes dos not distinguish a domain name from a mark for purposes of Policy ¶ 4(a)(i). See Infineon Technologies AG v. mustafa mashari, FA 1619868 (Forum June 27, 2015) (holding “the addition of the “.info” gTLD is seen as irrelevant to its analysis”). The Panel therefore find that Respondent’s <midea.info> domain name is identical to the MIDEA mark under Policy ¶ 4(a)(i).
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 has no rights or legitimate interests in the <midea.info> domain name as Respondent is not commonly known by the disputed domain name, and Complainant has not authorized Respondent to use the MIDEA mark. The Panel notes that a privacy service was used by Respondent, but was lifted as a result of the commencement of this proceeding. The WHOIS information of record now identifies Respondent as “Milen Radumilo.” The Panel therefore finds that Respondent is not commonly known by the <midea.info> domain name, and thus has no rights under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name); 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 argues that Respondent does not sue the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as the domain name resolves to a website that contains competing pay-per-click links. Using a domain name to offer links to services in direct competition with a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”) Complainant provides screenshot evidence of the resolving website for the disputed domain name, which hosts links to third-party websites, some of which compete with Complainant’s business. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
Complainant also provides screenshot evidence of the disputed domain name’s listing on a domain name sale site. The Panel finds that this is further evidence that Respondent lacks rights under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Enterprise Holdings, Inc. v. Huang Jia Lin, FA1504001614086 (Forum May 25, 2015) (“Accordingly, the Panel finds that Respondent’s general attempt to sell the disputed domain name is further evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii).”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent’s offers to sell the <midea.info> domain name evinces bad faith. The Panel agrees and finds bad faith under Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”)
Complainant argues that Respondent registered the disputed domain name as part of a pattern of bad faith registration. A complainant may use serial cybersquatting to substantiate an argument of bad faith under Policy ¶ 4(b)(ii). See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum Nov. 2, 2012) (“Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).”) Complainant provides evidence of rulings adverse to Respondent in prior UDRP cases involving well-known marks. Therefore, the Panel finds that bad faith under Policy ¶ 4(b)(ii).
Complainant also claims that Respondent registered and uses the <midea.info> domain name in bad faith because the resolving webpage displays links to Complainant’s competitors. The Panel agrees and finds bad faith under Policy ¶ 4(b)(iii). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”) The Panel finds that this also demonstrates the bad faith use of the disputed domain name for Respondent’s commercial gain, showing bad faith under Policy ¶ 4(b)(iv).
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 <midea.info> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 20, 2022
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