WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dyson Technology Limited v. Xinqian Wen
Case No. D2018-2611
1. The Parties
The Complainant is Dyson Technology Limited of Malmesbury, United Kingdom, represented by Craig Macpherson, United Kingdom.
The Respondent is Xinqian Wen of China.
2. The Domain Name and Registrar
The disputed domain name <airwrapdeals.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 November 14, 2018. On November 14, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 15, 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 November 30, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 20, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 21, 2018.
The Center appointed Nicholas Smith as the sole panelist in this matter on January 8, 2019. 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 a corporation based in the United Kingdom, part of a group of companies that is primarily engaged in the design, development and sale of domestic vacuum cleaners under the DYSON Mark. On October 9, 2018, the Complainant launched a hair styler product, the Dyson Airwrap styler. The Complainant maintains a website at “www.dyson.com” that includes a page dedicated to promoting the Dyson Airwrap styler (“the Complainant’s Website”).
The Complainant is the owner of trade mark registrations for the word “airwrap” (the “AIRWRAP Mark”), including a trade mark registered on April 13, 2018 (registration number 017560971) in the European Union for various goods relating to hair styling apparatus in classes 8, 11 and 21.
The Domain Name <airwrapdeals.com> was registered on October 30, 2018 and resolves to a website (“the Respondent’s Website”) that advertises the Dyson Airwrap styler, reproduces both the DYSON and AIRWRAP Marks, purports to be an official website of the Complainant, and is almost a complete copy of the Complainant’s Website, reproducing the photos and website design.
5. Parties’ Contentions
The Complainant makes the following contentions:
(i) that the Domain Name is identical or confusingly similar to the Complainant’s AIRWRAP Mark;
(ii) that the Respondent has no rights or any legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant is the owner of the AIRWRAP Mark, having registered the AIRWRAP Mark in the European Union. The Domain Name reproduces the AIRWRAP Mark along with the descriptive word “deals”, which indicates that the website sells the Airwrap product at a discounted price.
There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Respondent is not commonly known as the Domain Name nor does the Respondent have any authorization from the Complainant to register the Domain Name. The Respondent is not making a legitimate noncommercial or fair use of the Domain Name. Rather the Respondent is using the Domain Name to resolve to a website that purports to be the Complainant’s Website, offering to sell the Dyson Airwrap product for a price below even the production cost of the product. Such use is not bona fide.
The Domain Name was registered and is being used in bad faith. By using the Domain Name for a website that reproduces material from the Complainant’s Website and gives the impression of being the official website of the Complainant, it can be inferred that the Domain Name is used to misleadingly redirect the Complainant’s customers to an unrelated website for commercial gain. Such conduct amounts to registration and use of the Domain Name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
To prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark.
The Complainant is the owner of the AIRWRAP Mark, having registrations for AIRWRAP as a trade mark in the European Union.
The Domain Name incorporates the AIRWRAP Mark in its entirety with the addition of the descriptive term, “deals” which indicates that the website sells the Airwrap product at a discount. The addition of such a descriptive term to a complainant’s mark does not prevent a finding of confusing similarity. An individual viewing the Domain Name may be confused into thinking that the Domain Name would resolve to a site in some way connected to the Complainant. The Panel finds that the Domain Name is confusingly similar to the Complainant’s AIRWRAP Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate Interests
To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
“Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the AIRWRAP Mark or a mark similar to the AIRWRAP Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a legitimate noncommercial use.
Rather it appears that the Respondent has used the Domain Name to operate a website that, without the permission of the Complainant, passes itself off as the Complainant’s official “Dyson Airwrap” website in order to defraud the Complainant’s customers by persuading them to provide the Respondent with financial details in the course of ordering what the customers perceive to be official “Dyson Airwrap” products. Such conduct is fraudulent, and does not amount to a bona fide offering of goods and services.
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had the opportunity to put on evidence of its rights or legitimate interests, including submissions as to why its conduct amounts to a right or legitimate interest in the Domain Name under the Policy. In the absence of such a response the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) The respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) The respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 (Policy, paragraph 4(b)).
The Panel finds that the Respondent was aware of the Complainant and its reputation in the AIRWRAP Mark at the time the Domain Name was registered. The Respondent’s Website purports to sell the Complainant’s Airwrap product and includes material directly copied from the Complainant’s Website. The registration of the Domain Name in awareness of the AIRWRAP Mark and in the absence of rights or legitimate interests amounts under these circumstances to registration in bad faith.
The Respondent has used the Domain Name to intentionally attempt to attract, for commercial gain, Internet users to the Respondent’s Website, by creating a likelihood of confusion with the Complainant’s AIRWRAP Mark as to the source, sponsorship, affiliation or endorsement of its website. The Respondent’s Website is used to deceive the Complainant’s customers either for the purpose of selling them counterfeit Dyson Airwrap products or simply manipulate them into divulging their credit card details. The Respondent likely receives a financial reward from Internet users who visit the Respondent’s Website under the impression (created by the Domain Name and the content of the Respondent’s Website) that it is somehow connected to the Complainant. The Panel finds that such use amounts to use in bad faith.
Accordingly, the Panel finds that the Respondent has registered and used the Domain Name in bad faith under 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 <airwrapdeals.com> be transferred to the Complainant.
Date: January 9, 2019