WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Microban Products Company v. \u5929\u50d6\u751f\u6280\u80a1\u4efd\u6709\u9650\u516c\u53f8, Tim Fang
Case No. D2021-2704
1. The Parties
The Complainant is Microban Products Company, United States of America (“United States”), represented by Nelson Mullins Riley & Scarborough, L.L.P., United States.
The Respondent is \u5929\u50d6\u751f\u6280\u80a1\u4efd\u6709\u9650\u516c\u53f8, Tim Fang, Taiwan Province of China.
2. The Domain Name and Registrar
The disputed domain name <ultra-fresh.shop> 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 August 17, 2021. On August 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 19, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint.
The Center sent an email communication to the Complainant on August 25, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 27, 2021.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on August 31, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 20, 2021. The Respondent sent an informal Chinese language email communication to the Center on August 31, 2021; but did not submit any formal response. Accordingly, the Center notified the Commencement of Panel Appointment Process on September 24, 2021.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on September 29, 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.
On October 14, 2021, the Panel issued Administrative Panel Procedural Order No. 1 (the “Panel Order”), pursuant to paragraphs 10 and 12 of the Rules, requesting the Respondent to submit by 21 October 2021 actual evidence of its alleged trade mark ULTRA FRESH in Taiwan, Province of China. The Respondent did not submit any response to the Panel Order.
4. Factual Background
The Complainant is a company incorporated under the laws of the state of North Carolina in the United States and a leading manufacturer of antibacterial, antifungal, antimicrobial, antialgal, and anti-dust mite treatment products, including an antimicrobial solution marketed and sold for many years under the trade mark ULTRA-FRESH (the “Trade Mark”).
The Complainant is the owner of registrations for the Trade Mark in jurisdictions worldwide, including United States registration No. 1330317, with a registration date of April 16, 1985; and Chinese registration No. 1258050, with a registration date of March 28, 1999.
The Complainant registered and has continually used the <ultra-fresh.com> domain name since 1997.
The Respondent is apparently an individual located in China.
C. The Disputed Domain Name
The disputed domain name was registered on March 11, 2021.
D. Use of the Disputed Domain Name
The disputed domain name is resolved to a website providing sponsored links relating to various household products in respect of which the Complainant’s Trade Mark has been licensed for use (the “Website”).
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith.
The Respondent did not formally reply to the Complainant’s contentions; but contended in its informal email communication to the Center dated August 31, 2021 that “Ultra-Fresh is our trade mark registered in Taiwan for food products”.
6. Discussion and Findings
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration. Disregarding the generic Top-Level Domain (“gTLD”) “.shop”, the disputed domain name is identical to the Trade Mark.
The Panel therefore finds that the disputed domain name is identical to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
Notwithstanding the Respondent’s unsubstantiated contention in his informal email communication to the Center, and despite having been given the opportunity by way of the Panel Order to submit evidence in respect of his asserted trade mark rights, the Respondent has failed to show that he has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been resolved to the Website, containing pay-per-click links relating to goods in respect of which the Complainant’s product manufactured and sold under the Trade Mark is used, for commercial gain.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
In all the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In light of the manner of use of the disputed domain name highlighted in Section B. above, noting also that the Complainant registered and has continually used the <ultra-fresh.com> domain name since 1997, the Panel finds that the requisite element of bad faith has been made out, under paragraph 4(b)(iv) of the Policy.
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <ultra-fresh.shop> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: October 26, 2021