ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Whaleco Inc. d/b/a Temu. v. Robert junior, Jadeed tech Case No. D2024-1892 1. The Parties Complainant is Whaleco Inc. d/b/a Temu., United States of America, represented internally. Respondent is Robert junior, Jadeed tech, Pakistan. 2. The Domain Name and Registrar The disputed domain name (“Domain Name”) is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 3, 2024. On May 6, 2024, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 6, 2024, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent (Redacted for Privacy, Withheld for Privacy ehf) and contact information in the Complaint. The Center sent an email communication to Complainant on May 10, 2024, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on May 10, 2024. The Center verified that the Complaint together with the amendment to 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 May 22, 2024. In accordance with the Rules, paragraph 5, the due date for Response was June 11, 2024. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 13, 2024.
page 2 The Center appointed Marina Perraki as the sole panelist in this matter on June 24, 2024. 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 Complainant operates the TEMU online shopping platform, accessible through its website at ”www.temu.com” and mobile applications. Complainant’s platform launched in the United States of America in September 2022, and quickly became the most downloaded e-commerce app for the fourth quarter of 2022. Complainant’s group owns trademark registration for TEMU, of which Complainant is the exclusive licensee, including the following: United States of America trademark registration, TEMU (word), No. 7164306, filed on August 10, 2022 and registered on September 12, 2023 for services in class 35. The Domain Name was registered on January 8, 2024 and at the time of filing of the Complaint lead to a website (“the Website”) prominently displaying Complainant’s trademarks and logos. The Website purportedly provided information about Complainant’s platform, and it included links to third party websites. The Website also contained a disclaimer at the end of the lengthy homepage stating that it is “independent” and that it has no relationship with the name “Temu”. Currently the Domain Name leads to an inactive website. 5. Parties’ Contentions A. Complainant Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the Domain Name. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between Complainant’s trademark and the Domain Name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, (“WIPO Overview 3.0”), section 1.7.
page 3 Complainant has shown rights in respect of a trademark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1. The entirety of the mark is reproduced within the Domain Name. Accordingly, the Domain Name is confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. The Panel finds the mark is recognizable within the Domain Name. Accordingly, the Domain Name is confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. Although the addition of other terms here, “shopping” and “app”, may bear on assessment of the second and third elements, the Panel finds the addition of such terms does not prevent a finding of confusing similarity between the Domain Name and the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.8. The generic Top-Level Domain (“gTLD”) “.com” is disregarded, as gTLDs typically do not form part of the comparison on the grounds that they are required for technical reasons (Rexel Developpements SAS v. Zhan Yequn, WIPO Case No. D2017-0275; and Hay & Robertson International Licensing AG v. C. J. Lovik, WIPO Case No. D2002-0122). WIPO Overview 3.0, section 1.11.1. The Panel finds the first element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the respondent may demonstrate rights or legitimate interests in a disputed domain name. Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the difficult task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (although the burden of proof always remains on the complainant). If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. Having reviewed the available record, the Panel finds Complainant has established a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name. Respondent has not rebutted Complainant’s prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the Domain Name such as those enumerated in the Policy or otherwise. On the contrary, as Complainant demonstrated, the Domain Name resolved to the Website, which eminently featured Complainant’s trademarks and therefore suggested falsely that it is an affiliated entity or an authorized partner of Complainant or that it is endorsed by Complainant. Per Complaint, Respondent is not an affiliated entity and no agreement, express or otherwise, exists allowing the use of Complainant’s trademarks on the Website and the use of the Domain Name by Respondent. The existence of a disclaimer does not change the above, since the reproduction of the trademarks of Complainant is most eminent while the disclaimer is only found at the bottom of the very lengthy home page. Further, the Panel finds that use of the Domain Name including links to third party websites, likely for commercial gain, does not confer rights or legitimate interests on Respondent. The Panel finds the second element of the Policy has been established.
page 4 C. Registered and Used in Bad Faith The Panel notes that, for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular, but without limitation, that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. Paragraph 4(b) of the Policy sets out a list of non-exhaustive circumstances that may indicate that a domain name was registered and used in bad faith, but other circumstances may be relevant in assessing whether a respondent’s registration and use of a domain name is in bad faith. WIPO Overview 3.0, section 3.2.1. The Panel concludes that Respondent has registered and used the Domain Name in bad faith. Because the TEMU mark had been used and registered at the time of the Domain Name registration by Respondent, the Panel finds it more likely than not that Respondent had Complainant’s mark in mind when registering the Domain Name (Tudor Games, Inc. v. Domain Hostmaster, Customer ID No. 09382953107339 dba Whois Privacy Services Pty Ltd / Domain Administrator, Vertical Axis Inc., WIPO Case No. D2014-1754; Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226). The Panel takes into account the nature of Complainant’s services, provided online, the composition of the Domain Name which incorporates fully the trademark of Complainant plus the terms “shopping” and “app”, which are descriptive of Complainant’s business and the content of the Website which reproduced eminently the trademarks and logos of Complainant. As regards bad faith use of the Domain Name, Complainant has demonstrated that the Domain Name was used to resolve to the Website, which provided information related to Complainant and included links to third party websites. The Website also prominently displayed Complainant’s registered trademarks and logos, thereby giving the false impression that it is affiliated to Complainant or an authorised partner of Complainant or that it is endorsed by Complainant. The Domain Name was therefore used to intentionally create a likelihood of confusion with Complainant’s trademark and business as to the source, sponsorship, affiliation, or endorsement of the website it resolves to. This can be used in support of bad faith registration and use (Booking.com BV v. Chen Guo Long, WIPO Case No. D2017-0311; Ebel International Limited v. Alan Brashear, WIPO Case No. D2017-0001; Walgreen Co. v. Muhammad Azeem / Wang Zheng, Nicenic International Group Co., Limited, WIPO Case No. D2016-1607; Oculus VR, LLC v. Sean Lin, WIPO Case No. DCO2016-0034; and WIPO Overview 3.0, section 3.1.4). As regards to the current use, Panels have found that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding. WIPO Overview 3.0, section 3.3. Having reviewed the available record, the Panel notes the distinctiveness or reputation of Complainant’s trademark, and the composition of the Domain Name, and finds that in the circumstances of this case the current passive holding of the Domain Name does not prevent a finding of bad faith under the Policy. The Panel finds that Complainant has established the third element 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 Domain Name be transferred to Complainant. /Marina Perraki/ Marina Perraki Sole Panelist Date: July 8, 2024
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