WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Cullen Wines (Australia) Pty Ltd. v. Song Ang
Case No. D2020-2453
1. The Parties
Complainant is Cullen Wines (Australia) Pty Ltd., Australia, represented by Wrays, Australia.
Respondent is Song Ang, China.
2. The Domain Name and Registrar
The disputed domain name <cullenwines.com> (the “Domain Name”) is registered with Bizcn.com, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 22, 2020. On September 22, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 28, 2020, 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 and contact information in the Complaint. The Center sent an email communication to Complainant on October 2, 2020 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 October 5, 2020.
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 Respondent of the Complaint, and the proceedings commenced on October 7, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 27, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 28, 2020.
The Center appointed Robert A. Badgley as the sole panelist in this matter on November 27, 2020. 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 is an Australian winery that has sold wine under the CULLEN trademark for decades. Complainant holds numerous trademark registrations for CULLEN in various countries, including Australian Reg. No. 899551 (registered December 1, 2003), and European Union Reg. No. 1302559 (registered April 13, 2016).
Complainant operates a commercial website at “www.cullenwines.com.au”, a domain name it has owned since 2001. Complainant annexes to the Complaint various news articles and other documents tending to establish that the CULLEN mark has in fact achieved an impressive level of notoriety as a source identifier for Complainant’s wine offerings. Complainant also annexes to the Complaint screenshots indicating a respectable presence on social media platforms.
The Domain Name was registered on May 28, 2020. The Domain Name resolves to a website, in a Chinese language, which features extensive pornography.
Complainant asserts that it has no relationship with Respondent, and has not authorized Respondent to use its CULLEN trademark in a domain name or otherwise.
5. Parties’ Contentions
Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the Domain Name.
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
The Panel concludes that Complainant has rights in the trademark CULLEN through registration and use demonstrated in the record. The Panel also concludes that the Domain Name is confusingly similar to the CULLEN mark. The Domain Name incorporates the CULLEN mark in its entirety, and adds the descriptive term “wines.” Because Complainant’s CULLEN mark is clearly recognizable within the Domain Name, confusing similarity between the mark and the Domain Name is clearly present here.
Complainant has established Policy paragraph 4(a)(i).
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] 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 [Respondent] (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 [Respondent] 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 Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name. Respondent has not come forward in this proceeding to articulate or prove his bona fides vis-à-vis the Domain Name. As noted above, Complainant has no relationship with Respondent, and Complainant has never authorized Respondent to use its CULLEN trademark in a domain name or otherwise. The Domain Name, which clearly targets the CULLEN trademark because the word “wines” is also contained within the Domain Name, resolves to a pornography site. That does not vest Respondent with legitimate interest.
Complainant has established Policy paragraph 4(a)(ii).
C. Registered or Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent registered and used the Domain Name in bad faith. As noted above, the undisputed record here establishes rather clearly that Respondent targeted Complainant’s CULLEN trademark when registering the Domain Name. The Panel concludes that this targeting, when coupled with the pornographic website to which the Domain Name resolves, amounts to bad faith registration and use of the Domain Name. See Six Continents Hotels, Inc. v. Seweryn Nowak, WIPO Case No. D2003-0022 (“the diversion of the domain names to a pornographic site is itself certainly consistent with the finding that the domain name was registered and is being used in bad faith”).
Complainant has established Policy paragraph 4(a)(iii).
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 <cullenwines.com> be transferred to Complainant.
Robert A. Badgley
Date: December 11, 2020