The Complainant is Delivery Hero SE, Germany, represented by The GigaLaw Firm, Douglas M. Isenberg, Attorney at Law, LLC, United States of America.
The Respondent is Xiqing Bai, China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 26, 2021. On August 26, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 26, 2021, 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.
The Center verified that 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 September 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 23, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 24, 2021.
The Center appointed Ian Lowe as the sole panelist in this matter on October 8, 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 BackgroundThe Complainant is a German company based in Berlin, Germany and listed on the Frankfurt Stock Exchange. It started as a food delivery service in 2011 and is now one of the world’s leading local delivery platforms, operating in around 50 countries across Asia, Europe, Latin America, the Middle East, and North Africa. It is pioneering quick commerce, aiming to bring groceries and household goods to customers in under one hour. In the first quarter of 2021, the Complainant fulfilled 663 million orders with a gross merchandise value of EUR 7.8 billion. It employs some 29,000 people worldwide.
The Complainant is the proprietor of around 23 trademark registrations around the world comprising DELIVERY HERO, in at least 10 jurisdictions, including Germany trademark number 302011051453, DELIVERY HERO, registered on November 18, 2011. The Complainant registered the domain name
The Domain Name was registered on August 20, 2020. It presently resolves to a webpage offering the Domain Name for sale for EUR 5,500. At the time of filing the Complaint, it was offered for sale at EUR 15,000.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the Domain Name is identical to its DELIVERY HERO trademark, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(i) of the Policy.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsAccording to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove that:
(i) the 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 Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
The Complainant has uncontested rights in the trademark DELIVERY HERO. It is the owner of a number of trademark registrations in respect of the DELIVERY HERO mark, and the Panel is also satisfied that the Complainant has acquired widespread goodwill and reputation in respect of the DELIVERY HERO mark through use over a number of years. Ignoring the country code Top-Level Domain (“ccTLD”) “.co” for this purpose, the Domain Name comprises the entirety of the DELIVERY HERO trademark. Accordingly, the Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsThe Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in respect of the Domain Name. The use made of the Domain Name by the Respondent for a website parking page offering to sell the Domain Name for sums of EUR 15,000 and EUR 5,500 does not indicate any such rights. There is no indication that the Respondent has been commonly known by the Domain Name. The Respondent has chosen not to respond to the Complaint or to counter the prima facie case established by the Complainant. The Panel cannot envisage what rights or legitimate interests the Respondent could have in the Domain Name, which simply comprises the Complainant’s trademark. Furthermore, the nature of the Domain Name, being identical to the Complainant’s DELIVERY HERO mark, carries a high risk of implied affiliation (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). In the circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad FaithIn light of the nature of the Domain Name, identical as it is to the Complainant’s DELIVERY HERO mark, the Panel is in little doubt that the Respondent must have had the Complainant and its rights in the DELIVERY HERO name in mind when it registered the Domain Name. Further, the Panel struggles to conceive of any legitimate, bona fide reason for the registration of the Domain Name. The circumstances of registration and the use to which the Domain Name has been put (offering it for sale at sums in excess of out-of-pocket expenses for registering the Domain Name), represent paradigm bad faith registration and use with a view to financial gain. Moreover, the Complainant asserts that two domain name disputes involving the registration and use of domain names incorporating widely known third party trademarks have resulted in adverse decisions against the Respondent (Syngenta Participations AG Intellectual Property Domain Name Management (un departamento dentro de Sygenta Participaciones AG) v. Xiqing Bai,WIPO Case No. DPE2012-0003 and Intesa Sanpaolo S.p.A. v. Bai Xiqing,WIPO Case No. DNL2011-0054); absent any response from the Respondent, these circumstances further support a finding of bad faith in the present case.
Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name
Ian Lowe
Sole Panelist
Date: October 22, 2021