The Complainant is Heat Controller LLC, United States of America (“US”), represented by Bryan Cave Leighton Paisner, US.
The Respondent is Xia Men Mei Hua Shun Jin Chu Kou You Xian Gong Si Chen Jiang, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on January 28, 2020. On January 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 12, 2020, 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 13, 2020 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 in English on February 13, 2020. On February 13, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on February 13, 2020. The Respondent did not comment on the language of the proceeding. 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 in English and Chinese of the Complaint, and the proceedings commenced on February 19, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 10, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 13, 2020. The Center appointed Jonathan Agmon as the sole panelist in this matter on March 27, 2020. 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, Heat Controller LLC, and its related and affiliated entities and licensees, has been selling residential and commercial heating and cooling equipment through a network of distributors for more than 75 years. Since at least as early as 1969, the Complainant has consistently used the mark CENTURY® in connection with heating and cooling products, equipment, and parts. The Complainant holds numerous trademark registrations for the CENTURY mark and variations thereof in connection with cooling and heating, in US and China (collectively, the “CENTURY Marks”). The Complainant is the owner of several trademark registrations worldwide, including but not limited to the following, in US and China: - CENTURY (Registration No. 1,089,611) filed on February 14, 1977 and registered on April 18, 1978 in US; The disputed domain name was registered on July 4, 2017. According to the evidence submitted by the Complainant, the website operated by the Respondent under the disputed domain name included the use of what appears to be the Complainant’s logo mark comprising the CENTURY Mark in the same colour used by the Complainant, including offering for sale various air conditioning products and parts, as well as warranty and support services. 5. Parties’ Contentions A. Complainant The Complainant’s contentions include the following: The Complainant argues that the disputed domain name is confusingly similar to the Complainant’s registered CENTURY Marks as the disputed domain name wholly incorporate the CENTURY Marks with a descriptive word “air” and geographic location “USA” that are insufficient to avoid confusing similarity. The Complainant also argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name as it has not licensed or permitted the Respondent to use any its trademark or register the disputed domain name. The Complainant further argues that the disputed domain name was registered and is being used in bad faith as part of the Respondent’s attempt to divert potential customers away from the Complainant and its products for its own commercial benefit. For all of the above reasons, the Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of Proceedings Paragraph 11 of the Rules provides that: “(a) Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” The language of the Registration Agreement for the disputed domain name is Chinese. The Complainant requested that the language of the proceeding be English. The Respondent did not comment on the language of the proceeding. The Panel cites the following with approval: “Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. 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 abilities to articulate the arguments for the case.” (See Groupe Auchan v. xmxzl,WIPO Case No. DCC2006‑0004). The Panel finds that in the present case, the following should be taken into consideration upon deciding on the language of the proceeding: (i) The disputed domain name consists of Latin letters, rather than Chinese characters; (ii) The Complainant may be unduly disadvantaged by having to conduct the proceeding in the Chinese language; (iii) The Respondent did not object to the Complainant’s request that English be the language of the proceeding; and (iv) The disputed domain name resolves to a website entirely in English. Upon considering the above, the Panel determines that English be the language of the proceeding. 6.2 Substantive Issues A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The disputed domain name Further, it is well established that the addition of a descriptive term “air” or geographical term “USA” does not avoid confusing similarity between the Complainant’s trademark and the disputed domain name. (See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8.) Consequently, the Panel finds that the Complainant has shown that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests Once the Complainant establishes a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, the burden of production shifts to the Respondent to show that it has rights or legitimate interests in respect to the disputed domain name (See WIPO Overview 3.0, section 2.1). In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and the Respondent has failed to assert any such rights or legitimate interests. The Complainant has provided evidence that it owns trademark registrations long before the disputed domain name was registered and that it is not affiliated with nor has it licensed or otherwise permitted the Respondent to use the Complainant’s trademark (see LEGO Juris A/S v. DomainPark Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master,WIPO Case No. D2010‑0138). The Complainant also provided evidence that the Respondent is not commonly known by the disputed domain name (see WIPO Overview 3.0, section 2.3). Further, the Respondent did not submit a Response in the present case and did not provide any explanation or evidence to show rights or legitimate interests in the disputed domain name which is sufficient to rebut the Complainant’s prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The Complainant must also show that the Respondent registered and is using the disputed domain name in bad faith (see Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy. The Complainant has submitted evidence, which shows that the Respondent registered the disputed domain name long after the Complainant registered its trademark. According to the evidence filed by the Complainant, the Complainant has owned registration for the CENTURY Marks since the year 1977. In view of the evidence filed by the Complainant, and the widespread use of the CENTURY Marks, it is suggestive of the Respondent’s bad faith in these particular circumstances that the trademark, owned by the Complainant, was registered long before the registration of the disputed domain name. Therefore, it is unlikely that the Respondent did not know of the Complainant’s mark prior to registration of the disputed domain name (see Sanofi-Aventis v. Abigail Wallace,WIPO Case No. D2009-0735). Furthermore, the disputed domain name incorporates the Complainant’s trademark in its entirety with the addition of the descriptive term “air” or geographical term “USA” which the Panel finds is an attempt by the Respondent to confuse and/or mislead Internet users seeking or expecting the Complainant. Previous UDRP panels ruled that in such circumstances “[t]he addition of the generic abbreviation, ‘usa’, does not remove the confusing similarity with the Complainant’s trademark. In fact, as the Complainant rightly pointed out, it adds to the confusion with the Complainant’s mark as the Complainant and its products emanate from the United States”. (See Costco Wholesale Corporation v. yang xinfu, yangxinfu / YinSi BaoHu Yi KaiQi (Hidden by Whois Privacy Protection Service),WIPO Case No. D2016‑1268). To this end, prior UDRP panels have established that attracting Internet traffic by using a domain name that is identical or confusingly similar to a registered trademark may be evidence of bad faith under paragraph 4(b)(iv) of the UDRP. The Complainant submitted evidence that the Respondent is using the disputed domain name to ride off the reputation and goodwill of the Complainant and its CENTURY Marks for commercial gain by creating a likelihood of confusion with the Complainant’s marks when the Respondent has no rights or legitimate interests in the disputed domain name. The website operated by the Respondent under the disputed domain name included the use of what appears to be the Complainant’s logo mark comprising the CENTURY Mark in the same colour used by the Complainant, including offering for sale various air conditioning products and parts, as well as warranty and support services. Such behaviour constitutes evidence of bad faith under paragraph 4(b)(iv) of the UDRP. Based on the evidence presented to the Panel, including the registration of the disputed domain name long after the registration of the Complainant’s marks, the confusing similarity between the disputed domain name and the Complainant’s marks, the Respondent’s use of the disputed domain name, and the fact that no Response was submitted by the Respondent, the Panel draws the inference that the disputed 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 disputed domain name Jonathan Agmon
- CENTURY (Registration No. 4,687,169) filed on January 31, 2014 and registered on February 17, 2015 in US;
- CENTURY (Stylized) (Registration No. 4,827,810) filed on January 31, 2014 and registered on October 6, 2015 in US; and
- CENTURY HEAT CONTROLLER (Registration No. 14,565,315) filed on May 27, 2014 and registered on October 7, 2016 in China.
Sole Panelist
Date: April 10, 2020
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