The Complainant is Midea Group Co., Ltd. of Guangzhou, China, represented by Advance China IP Law Office, China.
The Respondent is Registration Private, Domains by Proxy, LLC of Scottsdale, Arizona, United States of America (“United States”) / Duran Topuz of Istanbul, Turkey. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 7, 2018. On February 7, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on February 15, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on February 17, 2018.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 20, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 12, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 14, 2018.
The Center appointed Kaya Köklü as the sole panelist in this matter on March 26, 2018. 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 Chinese company founded in 1968 and globally active in the field of selling and marketing various kinds of electronic goods, particularly household appliances.
The Complainant owns a large number of MIDEA trademark registrations around the world, including in Turkey. According to the provided documents in the case file, the Complainant is, inter alia, the registered owner of the Turkish Trademark Registrations No. 2001 15844 (registered on April 15, 2003) and No. 2004 05056 (registered on June 22, 2005), covering trademark protection for various goods, such as goods in classes 7, 9 or 11.
The Respondent seems to be an individual located in Istanbul, Turkey.
The disputed domain name was registered on June 29, 2017.
The disputed domain name is currently parked by the Registrar but it is evidenced by the Complainant that it resolved at the time of filing of the Complaint to an active website, which is used for offering MIDEA coffee machines in the Turkish language. The Complainant’s screenshots also show that the Respondent promotes the Complainant’s products by prominently using the MIDEA trademark without publishing a visible disclaimer describing the (non-existent) relationship between the Parties. 5. Parties’ Contentions A. Complainant
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is confusingly similar to its MIDEA trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is rather argued that the disputed domain name falsely suggests that there is some official or authorized link between the Complainant and the Respondent in Turkey.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent must have been aware of the Complainant’s MIDEA trademark, when registering the disputed domain name B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint’s contentions. Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See, section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
It is further noted that the Panel, where appropriate, will decide consistent with the WIPO Overview 3.0. A. Identical or Confusingly Similar
The Panel finds that the Complainant has registered trademark rights in the mark MIDEA by virtue of a large number of trademark registrations, including trademark registrations covering protection in Turkey.
The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s registered MIDEA trademark, as it fully incorporates the Complainant’s trademark. The mere addition of the descriptive Turkish term “kahve”, which means “coffee” in the English language, does not serve to distinguish the disputed domain name from the Complainant’s registered MIDEA trademark.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
While the burden of proof on this element remains with the Complainant, UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production of evidence shifts to the respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant’s trademark MIDEA in a confusingly similar way within the disputed domain name.
There is also no indication in the current record that the Respondent is commonly known by the disputed domain name. Furthermore, the Respondent has failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain name
Particularly, the Panel is convinced that the Respondent cannot be assessed as a legitimate reseller for the Complainant’s coffee machines in light of Oki Data and thus is not entitled to use the disputed domain name accordingly. The criteria as set forth in Oki Data are apparently not fulfilled in the present case, particularly as the Respondent prominently uses the Complainant’s MIDEA trademark on its website which is linked to the disputed domain name, without adequately disclosing the relationship, or lack thereof, between the Respondent and the Complainant. By doing so, the Respondent creates the false impression that the Respondent might be an official and authorized reseller for the Complainant’s coffee machines. In view of the Panel, this takes the Respondent out of the Oki Data safe harbour for purposes of the second element.
As a conclusion, the Panel finds that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is further convinced that the Respondent has registered and used the disputed domain name in bad faith.
The Panel notes the reputation and wide recognition of the Complainant’s trademark MIDEA, particularly in Turkey. The Panel is convinced that the Respondent must have had the MIDEA trademark in mind when registering the disputed domain name.
It appears that the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant, in particular with its products and services. After having reviewed the Complainant’s screenshots of the website linked to the disputed domain name and the website itself, the Panel is convinced that the Respondent has intentionally registered the disputed domain name in order to generate traffic to its own business. The Panel believes that the Respondent is using the disputed domain name to intentionally attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s MIDEA trademark as to the source, sponsorship, affiliation or endorsement of its website. In the Panel’s view, the Respondent is misrepresenting itself as the trademark owner without being entitled to do so. Thus, the Panel believes that the Respondent in any case does not meet the Oki Data principles on various elements, particularly lack of a distinctive disclaimer and representing itself as the trademark owner by prominently using the Complainant’s logo on its website.
Furthermore, the Panel finds that the Respondent’s failure to respond to the Complaint also supports the conclusion that it has registered and is using the disputed domain name in bad faith.
Lastly, the Panel notes that the Respondent used a privacy service when creating the disputed domain name. Although privacy services might be legitimate in many cases, it is for the Panel difficult to see in the present case why the Respondent should need to protect its identity except to make it difficult for the Complainant to protect its trademark rights. The Panel rather believes that the choice of the disputed domain name (which fully incorporates the Complainant’s trademark MIDEA), rather indicates that the Respondent deliberately opted for a privacy shield in order to prevent an efficient enforcement of legitimate trademark rights by the Complainant.
All in all, the Panel concludes that the disputed domain name was registered and is used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy. 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 disputed domain name be transferred to the Complainant.
Kaya Köklü
Sole Panelist
Date: April 4, 2018
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