The Complainant is Huffy Corporation of Centerville, Ohio, United States of America (“US”), represented by Wood, Herron & Evans, LLP, US.
The Respondent is of Melbourne, Victoria, Australia. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Enetica Pty Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 28, 2014. On March 28, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 31, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 9, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 29, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 30, 2014.
The Center appointed Ian Lowe as the sole panelist in this matter on May 5, 2014. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is a worldwide leader in the manufacture and sale of personal riding vehicles such as bicycles and tricycles. It was founded by the Huffman family and its business dates back to that started by George Huffman in 1882. One of the Complainant’s most popular products currently is the “Huffy Slider”, a three-wheeled pedal or peg riding vehicle that can be used for, among other things, the increasingly popular pastime of “drift trike” sporting events.
The term “slider” is used synonymously with the term “drift trike” and both terms generally refer to three-wheeled pedal or peg riding vehicles or “trikes” used in “drift trike” sporting events.
From the 1950s, the Complainant’s bicycles became known as “Huffy” bicycles as a result of a strong advertising campaign, and the Complainant has made continuous use of the HUFFY mark in respect of its goods and services since that time. In 2002, the Complainant began selling three-wheeled pedal operated drift trikes in the US market under the mark HUFFY SLIDER and entered the Australian market in 2010.
The Complainant is the proprietor of numerous trademark registrations around the world comprising HUFFY including US registration number 540,150 stylized word mark HUFFY registered on March 27, 1951 in respect of bicycles, US registration number 2,352,005 HUFFY registered on May 23, 2000 for bicycles, Australian registration number A355,243 HUFFY registered on January 7, 1992 for bicycles and Australian registration number 1445381 HUFFY SLIDER registered on April 27, 2012 for three-wheeled bicycles or vehicles.
The Domain Name was registered on December 8, 2010. At the time of the Complaint, the Domain Name resolved to a website promoting drift trike sporting events which included in particular a link to a third party website selling drift trike sporting events products not affiliated with the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is identical or confusingly similar to its HUFFY and HUFFY SLIDER trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has undoubted, uncontested rights in the HUFFY and HUFFY SLIDER marks both by virtue of its US and Australia trademark registrations and as acquired through longstanding widespread use. The Domain Name is identical to the Complainant’s HUFFY SLIDER trademark and differs from the Complainant’s trademark HUFFY only by the addition of the descriptive word “slider”, ignoring the “.com” suffix for this purpose. The descriptive term “slider” does not detract from the distinctiveness of the HUFFY mark. Accordingly, the Panel finds that the Domain Name is identical or confusingly similar to a mark or marks in which the Complainant has rights. B. Rights or Legitimate Interests
The Complainant has made out a strong prima facie case that the Respondent has no rights or legitimate interests in respect of the Domain Name. It is not authorized in any way by the Complainant and is apparently using the Domain Name for a website promoting drift trike sporting events in Australia and directing visitors to a third party’s website selling related products not affiliated with the Complainant. The Panel therefore considers that the Complainant has made out a strong prima facie case that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent has not responded to the Complaint or sought to refute this prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith
In light of the nature of the Domain Name and the use to which it has been put, the Panel cannot see that there is any doubt that the Respondent registered the Domain Name with the Complainant and its products in mind. As indicated above, the Respondent has used the Domain Name for a website promoting sporting events and directing users to a third party website selling related products. The Panel considers that in doing so the Respondent has intentionally created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the Domain Name with the purpose of attracting Internet users to the Website. The obvious inference is that this was for commercial gain including by directing users to the third party website.
In the Panel’s view, the Respondent’s use of the Domain Name amounts to exploitation of the Complainant’s trademarks with a view to commercial gain and to paradigm bad faith use for the purposes of the Policy, particularly with regard to paragraph 4(b)(iv) of the Policy.
In the circumstances, the Panel finds that the Domain Name was registered and is being used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name be transferred to the Complainant.
Ian Lowe
Sole Panelist
Date: May 18, 2014
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