The Complainant is Meizu Technology Co., Ltd. of Guangdong, China, represented internally.
The Respondent is “osama bin laden” of Hong Kong, China. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 9, 2014. On January 9, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 10, 2014, 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. On January 13, 2014, the Center transmitted by email to the Complainant the Complaint Deficiency Notification. On January 14, 2014, the Complainant submitted an amended Complaint to the Center by email.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 30, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was February 19, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 20, 2014.
The Center appointed C. K. Kwong as the sole panelist in this matter on March 3, 2014. 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 active in the field of technology and is the owner of the trademark consisting of MEIZU which is registered in the Republic of Colombia as of August 30, 2007 under trademark registration no. 3404865 in respect of goods in Class 9 (Annex 2 to the Complaint). There is also reference to the registration of the Complainant’s mark in Hong Kong (Annex 4 to the Complaint).
The uncontradicated evidence produced by the Complainant shows the registration of its aforesaid MEIZU mark occurred many years before the registration of the disputed domain name on September 18, 2013.
Other than the particulars shown on the printout of the database searches conducted by the Complainant of the WhoIs database (Annex 1 to the Complaint), the website to which the disputed domain name resolves (Annex 5 to the Complaint), the WhoIs database search results and the website visit record updated to January 30, 2014 provided by the Center and some reference to the Respondent in the previous .hk Domain Name Dispute Resolution panel decision (Annex 4 to the Complaint), there is no evidence in the case file concerning the background of the Respondent and its business. 5. Parties’ Contentions A. Complainant
The Complaint has made the following contentions:
The Complainant is the owner of the trademark MEIZU which is registered in the Republic of Colombia. The disputed domain name is similar to the trademark MEIZU and the official domain name of the Complainant.
The Respondent has never been authorized by the Complainant to register the disputed domain name. The Respondent has no connection or affiliation with the Complainant and the Complainant has never given the Respondent any consent to use its mark in a domain name or in any manner.
The contents of the website to which the disputed domain name resolves contain false and malicious accusations against the Complainant. They alleged, inter alia that:
(a) the products of the Complainant are of inferior quality;
(b) after sales services are not up to standard;
(c) the Complainant is cheating, deceiving and defrauding its customers
The Respondent is using the trademark MEIZU to register a website with intent to tarnish the Complainant’s trademark.
The disputed domain name was registered and is being used in bad faith. The Respondent’s reason to register the disputed domain name is to revenge against the Complainant.
The Respondent previously registered the domain name , the subject of HK Domain Name Dispute Resolution case no. DHK-1300101, which was ordered to be transferred to the Complainant on December 2, 2013.
While the Respondent argued that its aim is to protect the rights of the Complainant’s customers, there was evidence showing his intention to obtain commercial gain as found by the panel in the above Hong Kong case.
The Respondent registered the disputed domain name for a new website to which it moved all the contents previously available on the “www.” website. The Respondent uses the website to which the disputed domain name resolves to defame the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Notice of Proceedings
The contact particulars of the Respondent and the disputed domain name were fully set out in the WhoIs search results provided in Annex 1 to the Complaint and the WhoIs search results updated to January 30, 2014 as provided by the Center.
Such contact particulars also concur with those provided by the Registrar to the Center on January 10, 2014.
On January 30, 2014, the Center forwarded the Notification of Complaint and Commencement of Administrative Proceeding to the Respondent in accordance with the contact particulars above by email with copies to the Registrar. The Center also forwarded the Written Notice to the Respondent by courier and facsimile in accordance with the said contact particulars.
The Panel finds that as long as the Complainant or the Center as the case may be has communicated with the Respondent using the contact information which the Respondent has chosen to provide to the Registrar as reflected in the above contact particulars, their respective obligations of such communications will be discharged and the Respondent is bound accordingly.
The Panel is satisfied that the Center has discharged its responsibility under paragraph 2(a) of the Rules to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint and that the failure of the Respondent to furnish a reply is not due to any omission or inadequate communication by the Center. B. The Three Elements
In rendering its decision, the Panel must adjudicate the dispute in accordance with paragraph 15(a) of the Rules which provides that, “[t]he Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. Paragraph 14(b) of the Rules further provides that, “[i]f a Party, in the absence of exceptional circumstances, does not comply with any provisions of, or requirement under these Rules or any requests from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate”. Paragraph 5(e) of the Rules further provides that, “[i]f a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint”.
The failure of the Respondent to respond does not automatically result in a favourable decision to the Complainant, which is specifically required under paragraph 4(a) of the Policy to establish each of the three elements as provided therein. See The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064 and Berlitz Investment Corp. v. Stefan Tinculescu,WIPO Case No. D2003-0465.
The said three elements are considered below. 1. Identical or Confusingly Similar
On the evidence available, the Panel has no hesitation in finding that the Complainant has rights in the trademark MEIZU by reason of its trademark registration as recited in Section 4 above.
The distinctive feature of the disputed domain is “meizu”, being the Complainant’s trademark in its entirety. The mere addition of “.com” and “.co” do not assist in distinguishing the disputed domain name from the Complainant’s mark.
It is well established practice to disregard generic Top-Level Domains such as “.com”, when assessing whether a domain name is identical or confusingly similar to the mark in issue. Société Anonyme des Eaux Minerales d’Evian and Societe des Eaux de Volvic v. Beroca Holdings B.V.I. Limited,WIPO Case No. D2008-0416. The same consideration applies to “.co” which stands for Colombia.
After removing the non-distinctive or generic elements, only the word “meizu” is left in its entirety.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark MEIZU and accordingly, the first element of paragraph 4(a) of the Policy is established. 2. Rights or Legitimate Interests
The Complainant needs to establish a prima facie case showing that the Respondent has no rights or legitimate interests in respect of the disputed domain name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. Once such prima facie case is made, the burden will shift to the Respondent to prove that it has rights or legitimate interests in the disputed domain name.
In the present case, the Complainant has asserted registration and use of the registered trademark MEIZU well before the Respondent’s registration of the disputed domain name on September 18, 2013. The Complainant has confirmed that it has not authorized the Respondent to use its mark in a domain name or in any manner.
There is also no evidence before the Panel to suggest that the Respondent is commonly known as .
The Panel is also not satisfied that there is any legitimate noncommercial or fair use of the disputed domain name by the Respondent despite its contents apparently contain criticisms of the Complainant’s goods and services. The Respondent has in this case intentionally registered a domain name that is essentially identical to the mark MEIZU in which the Complainant has rights. The use of such domain name embodying the word “meizu” without any addition or modifier, even in connection with a genuine criticism site, does not in this Panel’s view provide the Respondent with a right or legitimate interest for the purposes of the Policy. (See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) paragraph 2.4, View 1).
Paragraph 4(c) of the Policy states that the circumstances provided thereunder to demonstrate the domain name registrant’s rights or legitimate interests to the domain name for the purposes of paragraph 4(a)(ii) of the Policy are without limitation. Hence those circumstances are not exhaustive. In this connection, the Panel also refers to the special circumstances as detailed under Section 3 below to support its finding under the second element.
For these reasons, the Panel is satisfied that the Respondent has no rights or legitimate interests in the disputed domain name. 3. Registered and used in bad faith
Paragraph 4(b) of the Policy provides for four situations under which a conclusive presumption of registration and use in bad faith on the part of the Respondent will be invoked, but specifically provides that the circumstances under which bad faith can be proved are without limitation. To put it differently, the presumptions under paragraph 4(b) of the Policy are not exhaustive of the ways in which registration and use of the domain name in bad faith may be proved.
The Panel considers that bad faith can be found in the light of the following circumstances of the present case:
(a) Apparently, this is the second case between the Complainant and the Respondent. The first case involved the domain name under the said HK Domain Name Dispute Resolution case no. DHK-1300101 between the same parties and involving the same trademark MEIZU of the Complainant. In that case, it was found that the third element required under paragraph 4(a) of the Hong Kong Domain Name Registration Company Limited Domain Name Dispute Resolution Policy (“the HK Policy”) which corresponds to the third element of paragraph 4(a) of the Policy was established on the basis that there was online conversation between the Complainant and the Respondent showing that the Respondent did ask the Complainant for USD10,000 to assign the domain name in question.
(b) The Respondent was notified of the commencement of the HK Policy proceedings on September 18 2013;
(c) On the very same day of being notified of the HK Policy proceeding, the Respondent immediately applied for and registered the disputed domain name on September 18, 2013;
(d) In its online discussions with others as shown in Annex 5 to the Complaint, the Respondent said “.hk is on arbitration in Hong Kong right now, if lose, then it will be too late to change the domain name, it is better to move everything to the new domain name now” and “see my new domain name, www.”.
(e) The Respondent has offered no answer to the allegations made in the Complaint including the point that the contents of the website to which the disputed domain name resolves contain false and malicious accusations against the Complainant.
The intention of the Respondent was clearly to establish a new website using the disputed domain name which is substantially identical to the domain name and the Complainant’s domain name, as a continuation or replacement website, to repeat or continue to carry on the activities complained of by the Complainant, which it was then carrying on at the website. It was done in anticipation of an unfavorable decision in the HK Policy proceeding. The registration of the disputed domain name by the Respondent on the September 18, 2013 was done with full knowledge of the Complainant’s trademark MEIZU as a measure to circumvent the anticipated unfavorable decision in the HK Policy proceeding or to avoid the adverse impact which would result from it.
The Panel finds that the presumption under paragraph 4(b)(ii) of the Policy has been invoked. The Respondent has engaged in a pattern of conduct to register the disputed domain name in order to prevent the Complainant from reflecting its mark in a corresponding domain name.
The Panel further finds that irrespective of the above presumption, the circumstances of this case themselves justify the finding that the disputed domain name has been registered and is being used in bad faith under paragraph 4(a) of the Policy. C. Other aspects
The Panel’s decision is strictly confined to resolving the dispute over domain names under the Policy. The adjudication on other issues concerning any alleged civil rights of the parties and consumer protection belong to the jurisdictions of other tribunals. These are outside the ambit of the present decision. 7. Decision
For all the foregoing reasons, in accordance with paragraph 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
C. K. Kwong
Sole Panelist
Date: April 7, 2014
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