The Complainant is Wilhelm Kächele GmbH is of Weilheim/Teck, Germany, represented by Rüger | Abel, Germany.
The Respondent is Yuejiao Ou, Wuhan EvenWall Machinery Co., Ltd. of Wuhan, Hubei, China. 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 September 6, 2018. On September 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 confirming that the Respondent is listed as the registrant and providing the contact details. The Registrar also confirmed that the language of the registration agreement is English.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 12, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 2, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 3, 2018.
The Center appointed Matthew Kennedy as the sole panelist in this matter on October 15, 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 German company that manufactures stators and rotors, which are items of pumping and drilling technology. The Complainant has registered the trademark EVEN WALL as evidence by European Union trademark registration number 646190, registered on March 16, 1999, and international trademark registration number 1200901, registered on March 24, 2014 and designating China. Those trademark registrations specify “stators and rotors being parts of pumps” in class 7 and they are currently in force.
The Respondent is named as an individual and a Chinese company located in Wuhan, China that specializes in stators and rotors for pumping.
The disputed domain name was created on January 24, 2018. It resolves to the Respondent’s website, which offers for sale stators and rotors, including so-called “Even Wall Thickness Stator” and “Even Wall Hollow Rotor”, among others. It also offers technical support. The website is in English and Chinese. The contact telephone numbers are a Chinese fixed line and a Chinese mobile number. 5. Parties’ Contentions A. Complainant
The disputed domain name is identical to the Complainant’s EVENWALL trademark.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not using the disputed domain name in connection with a bona fide offering of goods but rather uses it to present and sell identical products under an identical trademark and thereby mislead customers.
The Respondent has registered and is using the disputed domain name in bad faith. The disputed domain name has been registered primarily to intentionally attract, for commercial gain, Internet users and in particular business customers to the Respondent’s website by making them believe that the disputed domain name refers to the Complainant’s products marked since decades under the trademark EVENWALL. The Respondent is taking a free ride on the Complainant’s reputation and sells copies of the Complainant’s products. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Based on the evidence submitted, the Panel finds that the Complainant has rights in the EVEN WALL trademark.
The disputed domain name wholly incorporates the Complainant’s EVEN WALL trademark, omitting only the space between the words which cannot form part of a domain name for technical reasons. The disputed domain name also includes the generic Top-Level Domain (“gTLD”) suffix “.com” but a gTLD suffix is disregarded in the comparison of a domain name and a trademark for the purposes of the first element of the Policy.
Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the panel, shall demonstrate that the respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to [the respondent] of the dispute, [the respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or
(ii) [the respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the respondent has] acquired no trademark or service mark rights; or
(iii) [the respondent is] making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
As regards the first circumstance, the Panel has already found that the disputed domain name is confusingly similar to the Complainant’s EVEN WALL trademark. The Complainant states that the Respondent is selling copies of the Complainant’s products and does not sell original products from the Complainant. Whether or not the stators and rotors offered for sale on the Respondent’s website are the Complainant’s original products or copies, they appear to be identical yet the Respondent’s website fails to disclose the Respondent’s lack of affiliation with the Complainant. These facts show that the Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services. See Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903. The Panel finds that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services.
As regards the second circumstance, the only evidence on the record that the Respondent organization is known by the name “EvenWall” is found on its own website and in the disputed domain name registration agreement. There is no evidence on the record that the Respondent has been commonly known by the disputed domain name.
As regards the third circumstance, the disputed domain name resolves to a commercial website. That is not a legitimate noncommercial or fair use.
In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent failed to rebut the Complainant’s prima facie case because it did not respond to the Complaint.
Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows:
“(iv) by using the [disputed] domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the Respondent’s] website or location or of a product or service on [the Respondent’s] website or location.”
The Respondent registered the disputed domain name in 2018, years after the Complainant obtained its trademark registrations, including in China, where the Respondent is located. The disputed domain name wholly incorporates the Complainant’s EVEN WALL trademark, omitting only the space between the words for technical reasons. The Respondent operates in the same highly specialized sector as the Complainant and sells products that appear to be identical to those of the Complainant. In these circumstances, it is reasonable to infer that the Respondent was aware of the Complainant at the time that it registered the disputed domain name. Accordingly, the Panel finds that the Respondent intentionally chose to register the Complainant’s trademark in the disputed domain name in bad faith.
The Respondent uses the disputed domain name with a website in English and Chinese that uses the Complainant’s EVEN WALL trademark to offer for sale products that appear to be identical to those of the Complainant, and to offer technical support. The Respondent is not affiliated in any way with the Complainant but this is not disclosed on the website to which the disputed domain name resolves. This gives the impression that the website is approved by, or affiliated with, the Complainant. Given these facts, the Panel considers that the Respondent’s use of the disputed domain name intentionally attempts to attract, for commercial gain, Internet users to the websites by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s websites or of the products on those websites.
Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) 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.
Matthew Kennedy
Sole Panelist
Date: October 21, 2018
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