The Complainant is Magna International Inc., Canada, represented by Gowling WLG (Canada) LLP, Canada.
The Respondent is Contact Privacy Inc., Customer 1247632381, Canada / Haonan Zhou, Canada. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 8, 2020. On December 9, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 9, 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 January 4, 2021 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 January 5, 2021. 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 January 13, 2021. In accordance with the Rules, paragraph 5, the due date for Response was February 2, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 17, 2021. The Center appointed Leon Trakman as the sole panelist in this matter on February 26, 2021. 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 global automotive supplier. The company, Magna International was founded in 1957 and incorporated under the laws of Ontario, Canada. Its principal office and place of business are in Canada. The Complainant registered the domain name The following is a list of the Complainant’s MAGNA INTERNATIONAL trademarks, including their registration numbers and respective country/territory of registration, all of them registered before the creation of the disputed domain name. Trademark Reg. No. Country/Territory MAGNA INTERNATIONAL TMA1058024 Canada MAGNA INTERNATIONAL TMA1044827 Canada MAGNA INTERNATIONAL TMA1058005 Canada MAGNA INTERNATIONAL TMA1044833 Canada MAGNA INTERNATIONAL TMA1044837 Canada MAGNA INTERNATIONAL TMA1058053 Canada MAGNA INTERNATIONAL 017877044 European Union The Complainant provides further evidence, that it uses its trademarks through social media platforms, including YouTube, Facebook, Twitter, LinkedIn, and Instagram. These trademarks are registered in Canada and the European Union. The identity of the Respondent is not visible to the public through publicly accessible WhoIs searches. However, the Registrar confirmed to the Center that the registrant of the disputed domain name is Haonan Zhou. The disputed domain name was registered on July 5, 2020 and resolves to a website featuring a photograph of one of the Complainant’s facilities in Canada and lists the street address of that facility. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to the Respondent’s trademarks, that the Respondent has no rights or legitimate interest in that disputed domain name, and that the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Panel determines that the disputed domain name is confusingly similar to the Complainant’s MAGNA INTERNATIONAL trademarks for the reasons below. The disputed domain name is identical to the Complainant’s trademark, other than the addition of “com”. WIPO panels have repeatedly held the use of the generic term “com” does not militate against a finding that the disputed domain name is confusingly similar to the Complainant’s trademark. See Accor v. David Larson,WIPO Case No. D2020-1680; Agfa-Gevaert N.V. v. Bruce C. Whitehurst, Xray Eye & Vision Clinics, WIPO Case No. D2020-1105, See too Skyscanner Limited v. Hildegard Gruener, WIPO Case No. D2018-2008; Accor v. Super Privacy Service LTD c/o Dynadot, WIPO Case No.D2019-1824. WIPO Panels have also held that the addition of descriptive and non-distinctive terms in a disputed domain name does not negate the confusing similarity between that name and the complainant’s mark. See e.g. Sutton Group Financial Services Ltd v GeorgeGeorge.com o/a George Geogeopoulos,WIPO Case No. D2004-0335. The Panel concludes that the disputed domain name is confusingly similar to the MAGNA trademarks owned by the Complainant. B. Rights or Legitimate Interests The Panel determines that the Respondent has no right or legitimate interest in the disputed domain name for the following reasons. The Respondent is not licensed, or otherwise authorized, directly or indirectly, to register or use any of the MAGNA trademarks or other name in any manner whatsoever, including in any domain name that is confusingly similar to the Complainant’s trademark. The Respondent also has no express, implied, or ostensible authority or authorization by ratification to act for, or in relation to, any other party who is authorized to act for the Complainant. The Respondent also uses the disputed domain name to accentuate its confusing similarity to the Complainant’s business. In particular, the disputed domain name resolves to a website featuring a photograph of one of the Complainant’s facilities in Canada and lists the street address of that facility. The Respondent’s use of the disputed domain name therefore does not satisfy the requirements of paragraph 4(c)(i). Furthermore, there is no evidence on record that the Respondent has ever been commonly known by the disputed domain name, as required by paragraph 4(c)(iii). Nor does the Respondent’s use of the disputed domain name constitute a legitimate, noncommercial or fair use of that name, as required by paragraph 4(c)(iii). The Panel recognizes that the Complainant had the burden of proving that the Respondent lacks rights or legitimate interests in the disputed domain name. See WIPO Overview 3.0, section 2.1.However, the Panel determines that the Complainant has satisfied that burden of proof. Nor is the failure of the Respondent to file a defense a reasonable basis to hold that it has discharged the burden of production that has shifted to it. See Banque de Luxembourg, SA v. WhoisGuard Protected, WhoisGuard, Inc. / Antonio Diaz, WIPO Case No. D2019-0495. C. Bad Faith Registration and Use The Panel determines that the Respondent has engaged in both bad faith registration and use of the disputed domain name. There is strong evidence on the record that the Respondent most likely had knowledge of the Complainant’s MAGNA INTERNATIONAL trademarks at the time of registering the disputed domain name and was aware of the nature of the Complainant’s business, its trademark and access to its products on “www.magna.com”. It is highly unlikely that the Respondent, in using a confusingly similar domain name, was unaware of the Complainant’s business and trademarks. It is plausible therefore to conclude that the Respondent registered the disputed domain name with the purpose of intentionally targeting the Complainant’s legitimate interests and right to its trademark. Such action constitutes a reasonable ground for holding that the Respondent’s registration was in bad faith. See Chanel, Inc. v. Cologne Zone,WIPO Case No. D2000-1809; Pfizer Inc. v Enamecorp.com,WIPO Case No. D2001-0791. The combined evidence that the Respondent was not authorized to act for the Complainant and has no rights or legitimate interests in the disputed domain name that is confusingly similar to the Complainant’s trademarks, strongly demonstrates that the Respondent did not register the disputed name in good faith. Based on the available evidence, the Panel finds that the Respondent registered the disputed domain name in bad faith. Establishing that the Respondent used the disputed domain name in bad faith is more challenging. While the disputed domain name directs users to a website featuring a photograph of one of the Complainant’s facilities in Canada and lists the street address of that facility, there is no evidence that the Respondent conducted any business activities through that website. The Complainant also contends that the Respondent has never been in any relationship with it. Nor is evidence adduced that the Respondent sought to enter into a relationship with, or sell the disputed domain name to, the Complainant, or to any party acting as agent or representative of the Complainant. However, the website at the disputed domain name does identify the Respondent as a “manufacturer” and invites visitors to the website to “Call Now” or “Request a Quote.” The fact that the website does not elaborate on these services does not dispel that the intention in so stating constitutes bad faith. Alternatively, or in addition, the Respondent’s intention might be to sell the domain name, if not to the Complainant, then to a third party. Furthermore, the Respondent’s intention may be to engage in “phishing” directed at extracting confidential information from users, such as their credit card or bank account details. Whichever of these purposes, individually or in combination, the Respondent may have, they all constitute clear evidence of its bad faith use. The Respondent’s bad faith is further evidenced in that the website to which the disputed domain name directs Internet users presents the Respondent as the Complainant. The website, notably, includes photographs and contact information that refers specifically to the Complainant and its business, and the use of its MAGNA INTERNATIONAL trademark. Given the clear intention of the Respondent to use such information on its website and the absence of authorization to do so, constitutes further evidence of bad faith. It is also most reasonable to conclude that, whatever other purposes the Respondent might have, the Respondent intended to direct Internet users to its website. Specifically, its intention was to mislead users in bad faith into mistakenly assuming that the Respondent was the Complainant, or was otherwise acting for the Complainant. It is reasonable to conclude that the Respondent’s intended to take advantage of the Complainant’s trademark, whether to undermine the Complainant’s reputation, goodwill and business, or to turn that goodwill and business to its direct advantage. In the absence of any other reasonable explanation for the Respondent’s conduct, the use arising from the Respondent’s registration of the disputed domain name constitutes bad faith. F. Hoffmann-La Roche AG v Private Whois Service,WIPO Case No. D2012-0081. The Panel therefore concludes that the Respondent registered and used the disputed domain 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, Leon Trakman
Sole Panelist
Date: March 2, 2021
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