WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dyson Technology Limited v. Chun Hai Xu
Case No. D2018-0756
1. The Parties
The Complainant is Dyson Technology Limited of Malmesbury, Wiltshire, United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented internally.
The Respondent is Chun Hai Xu of Pu tian, Fujian, China.
2. The Domain Name and Registrar
The disputed domain name <dysonpromotion.com> (the "Domain Name") is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 4, 2018. On April 5, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 6, 2018, 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 April 12, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 2, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 4, 2018.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on May 18, 2018. 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 part of a group of companies that operates worldwide, primarily in the design, development and sale of domestic vacuum cleaners that use cyclonic action to separate dirt and dust from the airflow. It also designs, develops and sells hand dryers, fans and heaters, humidifiers, purifiers, hair dryers and lighting products. The Complainant's group has had a market share of more than 35% by value of the UK domestic vacuum cleaner market. The annual turnover of the Complainant's group is over GBP 3.5 billion. It is a global business with whole trades in more than 70 countries, and more than 80% of its turnover is from non-UK markets.
The Complainant is the owner of multiple registrations of trademarks consisting of or containing the DYSON trademark, such as;
- US trademark numbers 3495150 and 4020756 for the word mark DYSON, registered on September 2, 2018 and August 30, 2011, in classes 3, 7 and 37, and classes 7, 9, 11, 28 and 37 respectively;
- Chinese trademarks numbers 6334843, 6334842 and 6334841 for DYSON registered on May 12, 2010, March 28, 2010 and March 28, 2010, in classes 7, 9 and 11 respectively; and
- EU trademark number 6305262 for the word mark DYSON registered on August 17, 2010, in classes 3, 5, 7, 9, 11, 21, 28 and 37.
All the trademarks have been assigned to the Complainant since the certificates were issued.
According to the Registrar, the Respondent registered the Domain Name on March 13, 2018. Prior to the filing of the Complaint, the Domain Name resolved to a "copycat" website with the same look and feel as the Complainant's official website. The website at the Domain Name is now inactive.
5. Parties' Contentions
The Complainant provides trademark registrations and submits its trademark is well-known. The Complainant argues that the generic wording "promotion" used in the Domain Name does not prevent a finding of confusing similarity. The word "promotion" is a common word in the English that refers to special offers, or sales. Hence, the Domain Name is confusingly similar to the Complainant's trademark.
The Complainant argues that the Respondent is not affiliated or related to the Complainant in any way, or licensed or otherwise authorized to use the Complainant's trademark. The Respondent has no prior rights or legitimate interests in the Domain Name. The Respondent is not making a fair or legitimate noncommercial use of the Domain Name. On the contrary, the Domain Name resolves to a website that offers Dyson products at discounted prices, in many cases significantly below the production cost of the genuine products. The Complainant believes that the website has been set up to mislead consumers into placing orders and making payment, and that no products will be delivered to such consumers – certainly not genuine Dyson products. Accordingly, the Complainant concludes that the Respondent is making an illegitimate use of the Domain Name.
As to bad faith, the Complainant argues that it is implausible that the Respondent was unaware of the Complainant when it registered the Domain Name. The Respondent is using the Domain Name to set up an unauthorized website as described above. By using the Domain Name this way, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's mark. The Respondent's use disrupts the business of the Complainant.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established that it has rights in the trademark DYSON.
The test for confusing similarity involves the comparison between the trademark and the domain name. In this case, the Domain Name is confusingly similar to the Complainant's trademark. The addition of the word "promotion" does not provide sufficient distinction from the Complainant's mark. For the purpose of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain ".com", see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.11.
The Panel finds that the Domain Name is confusingly similar to trademarks in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register a domain name containing its trademarks or otherwise make use of its marks. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way. As documented by the Complainant, the Respondent uses/has used the Domain Name to an unauthorized website which does not disclose its relationship with the Complainant and is likely to be fraudulent. This is neither a bona fide offering nor a legitimate noncommercial or fair use within the meaning of the Policy.
The Panel finds that the Complainant has made out an unrebutted prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The content of the Respondent's website at the Domain Name suggests that the Respondent was aware of the Complainant's trademark and its business when the Respondent registered the Domain Name.
The Respondent's use of the Domain Name is evidence of both bad faith registration and use. The Respondent attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's mark as to its source, sponsorship and affiliation. The bad faith is supported by the fact that the Respondent has not responded to the Complaint.
For the reasons set out above, the Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of paragraph 4(a)(iii) of the Policy.
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, <dysonpromotion.com> be transferred to the Complainant.
Date: May 30, 2018