The Complainant is Huel Limited, United Kingdom, represented by Demys Limited, United Kingdom.
The Respondent is 陈梦怡 (Chen Mengyi), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 16, 2021. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 17, 2021, 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 the same day 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 the same day.
On December 17, 2021, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on the same day. 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 December 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 16, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 17, 2022.
The Center appointed Matthew Kennedy as the sole panelist in this matter on January 19, 2022. 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 BackgroundThe Complainant manufactures a meal replacement product that it markets as “Huel”. The name “Huel” was coined as a contraction of the English words “human” and “fuel”. The Complainant holds the following trademark registrations for HUEL:
- United Kingdom trademark registration number 3121200, registered on November 6, 2015, specifying goods in classes 5, 29 and 30;
- European Union trademark registration number 014830591, registered on March 7, 2016, specifying goods in classes 5, 29 and 30; and
- United States trademark registration number 5108277, registered on December 27, 2016, specifying goods in class 5.
The above trademark registrations remain current. The Complainant has also registered the domain name
The Respondent is an individual located in China. According to information provided by the Complainant, two panels in previous proceedings under the Policy have found that the Respondent registered and was using other domain names in bad faith. See DKH Retail Limited v 陈梦怡 (Chen Mengyi) / 解玉宏 (jie yu hong),WIPO Case No. D2021-1185; and LK Bennett Fashion Limited v 陈梦怡 (Chen Mengyi),WIPO Case No. D2021-2986.
The disputed domain name was registered on February 21, 2021. It resolves to a website in English that offers for sale audio video accessories and other products. Under the heading “About Us”, the website is described as a “major retail wholesale B2C Internet business platform”. Prices are displayed in USD.
5. Parties’ Contentions A. ComplainantThe disputed domain name is identical to the Complainant’s HUEL mark.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has found no evidence that the Respondent has been commonly known as HUEL. The Respondent is not a licensee of the Complainant and has not received any permission or consent from the Complainant to use its marks. The Respondent does not offer the Complainant’s products for sale.
The disputed domain name was registered and is being used in bad faith. Given that the Complainant and its marks are well known, it is inconceivable that the Respondent did not have the Complainant firmly in mind when he registered the disputed domain name. The Respondent is using the website associated with the disputed domain name to sell third-party goods, unrelated to the Complainant or its products.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1. Language of the ProceedingParagraph 11(a) of the Rules provides that “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 Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.
The Complainant requests that the language of the proceeding be English. Its main arguments are that the disputed domain name is composed of English words and the website associated with the disputed domain name is exclusively in English.
Paragraph 10(b) and (c) of the Rules requires the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd.,WIPO Case No. D2008-0293.
The Panel observes that in this proceeding the Complaint and amended Complaint were filed in English. The website to which the disputed domain name resolves is in English only, from which it is reasonable to infer that the Respondent understands that language. Further, despite the Center having sent the notification of the Complaint, the Written Notice of the Complaint, and an email regarding the language of the proceeding in both Chinese and English, the Respondent has not commented on the issue of language nor expressed any interest in otherwise participating in this proceeding. Therefore, the Panel considers that requiring the Complainant to translate the amended Complaint would create an undue burden and delay, whereas accepting it as filed without translation will not cause unfairness to either Party.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English. The Panel would have accepted a Response in Chinese, but none was filed.
6.2 Substantive IssuesParagraph 4(a) of the Policy provides that a complainant must prove 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 SimilarBased on the evidence presented, the Panel finds that the Complainant has rights in the HUEL mark.
The disputed domain name wholly incorporates the HUEL mark. Its only additional element is a generic Top-Level Domain (“gTLD”) suffix (“.store”) which, as a mere technical requirement of registration, may be disregarded in the comparison between the disputed domain name and the Complainant’s mark. See generally WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.
Therefore, the Panel finds that the disputed domain name is identical 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 InterestsParagraph 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 and third circumstances set out above, the disputed domain name resolves to an online store offering for sale audio video accessories and other products. Although the disputed domain name is identical to the Complainant’s HUEL mark, the Complainant submits that the Respondent is not a licensee of the Complainant nor has he received any permission or consent from the Complainant to use its marks. While the website associated with the disputed domain name is a “store”, as indicated in the disputed domain name’s gTLD suffix, nothing in the content of the website has any apparent connection to the term “huel”. In view of these circumstances, the Panel considers that the Complainant has made a prima facie case that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, nor is he making a legitimate noncommercial or fair use of the disputed domain name.
As regards the second circumstance set out above, the Respondent is identified in the Registrar’s WhoIs database as “陈梦怡 (Chen Mengyi)”, not the disputed domain name. There is no evidence that the Respondent has been commonly known by the disputed domain name.
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 that prima facie case because he did not respond to the Complaint.
Therefore, based on the record of this proceeding, the Panel finds that the Complainant has satisfied the second element in paragraph 4(a) of the Policy.
C. Registered and Used in Bad FaithParagraph 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.
As regards registration, the disputed domain name was registered in 2021, years after the registration of the Complainant’s HUEL mark. The disputed domain name is identical to the HUEL mark, which is a coined word. According to evidence submitted by the Complainant, all the top results of an Internet search for “huel” refer to the Complainant. The Complainant also submits evidence of press reports regarding its HUEL mark. The Respondent provides no good faith explanation for his choice of the disputed domain name. Accordingly, the Panel has reason to find that the Respondent had the Complainant’s HUEL mark in mind when he registered the disputed domain name.
As regards use, the disputed domain name resolves to an online store offering for sale audio video accessories and other products, none of which has any apparent connection to HUEL. Accordingly, the Panel considers that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of his website or of a product on his website within the terms of paragraph 4(b)(iv) of the Policy.
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. DecisionFor 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
Matthew Kennedy
Sole Panelist
Date: February 1, 2022