In an award passed on February 17, 2016, in a domain name recovery complaint filed by Meizu Technology Co. Ltd. (hereinafter referred to as the 'Complainant') against Virginia Cross (hereinafter referred to as the 'Respondent'), before the National Internet Exchange of India (NIXI), the Arbitrator held that the disputed domain name (meizu.in) is similar to the trade mark 'MEIZU' of the Complainant and the same be transferred to the Complainant.
Brief Facts of the Case
The Complainant, Meizu Technology Co. Ltd., is a company existing under the corporate laws in China with its registered office at Guangdong, People's Republic of China. It provides MP3 players and smartphones since 2003, providing services in countries like the United States of America as well as India. Meanwhile, the Respondent, Virginia Cross, of Texas, U.S.A., did not submit any response to the complaint. Hence, its identity and activities are not known. The Complainant filed a complaint with NIXI on December 22, 2015, for the recovery of the disputed domain name (meizu.in), which was registered by the Respondent, as it incorporates the registered mark 'MEIZU' belonging to the Complainant.
Contentions raised by the Complainant
- The Complainant adopted MEIZU as a trade mark and has been continuously using MEIZU as a trade name, corporate name, business name and trading style since its very inception.
- The Complainant has obtained registrations of the aforesaid mark in a number of jurisdictions around the world including in India and the United States of America. The trade mark MEIZU was registered under Class 9 in India on September 24, 2008, initially in the name of Zhu Hai Mai Zu Electronic Technology Co. Ltd. Later, in March, 2011, the name of the registrant of the trade mark MEIZU was changed to Meizu Technology Co. Ltd.
- The Complainant is the owner of some other domain names incorporating the word MEIZU and is, thus, well-known to its customers and in its business circles as MEIZU all around the world.
- In recent times, a domain name has become a business identifier as it helps identify the subject of trade or service that an entity seeks to provide to its potential customers. Thus, there is also a strong likelihood that a web browser looking for MEIZU products in India or elsewhere would mistake the disputed domain name as that of the Complainant. Therefore, the disputed domain name (meizu.in) is similar or identical to the registered trade mark of the Complainant.
- The Respondent, as an individual, business or organization, has not been commonly known by the mark or name MEIZU as the Respondent's name is Virginia Cross nor has the Respondent applied for the registration of the mark MEIZU anywhere in the world.
- The Respondent is also not making a legitimate or fair use of the said domain name for offering goods and services.
- The Respondent has registered the disputed domain name (meizu.in) purposely with the motive or intention of obstructing the business of the Complainant, to obfuscate clients, prospective clients and other internet users and to cause a negative impact on the reputation of the Complainant. The main object of registering the domain name (meizu.in) by the Respondent is to mislead the general public and the customers of the Complainant.
- The use of a domain name that appropriates a trade mark to promote competing or infringing products cannot be considered a 'bona fide offering of goods and services'.
Contentions raised by the Respondent
The Respondent did not submit any response despite intimation of the Complaint to it by the Sole Arbitrator. The case was, therefore, proceeded ex-parte.
Discussion and Findings of the Sole Arbitrator, NIXI
The Arbitrator, while deciding the matter, made the following observations:
A. Identical or Confusingly Similar:
- The Complainant is the owner of the trade mark MEIZU, registered in certain countries. The Complainant also possess a number of other domain names with the word MEIZU and is the owner of the trade mark MEIZU, which is registered in certain countries.
- The Complainant possesses a number of other domain names with the word 'MEIZU'. Most of these domain names and trade mark have been created by the Complainant much before the date of creation of the disputed domain name by the Registrant/ Respondent.
- The disputed domain name is very much similar or identical to other domain names and the trade mark of the Complainant.
Therefore, the domain name (meizu.in) is confusingly similar or identical to the Complainant's trademarks.
B. Rights or Legitimate Interests:
- There is no evidence to suggest that the Respondent has become known by the disputed domain name anywhere in the world
- Based on the evidence adduced by the Complainant, it is concluded that the Respondent has no rights or legitimate interests in the disputed domain name.
- Further, the Complainant has not licensed or otherwise permitted the Respondent to use its name or trade mark or to apply for or use the domain name incorporating the said name. Therefore, the Registrant/ Respondent has no rights or legitimate interests in the domain names.
C. Registered and Used in Bad Faith:
- As contended by the Complainant, the Respondent has intentionally attempted to attract internet users to the disputed domain name, for commercial gain, by creating a likelihood of confusion with the Complainant's mark. The Complainant has also contended that the Respondent was aware of the Complainant's registration of the trade mark MEIZU, and the disputed domain name (meizu.in) is available for sale on the Sedo site.
- The Respondent registered or acquired the disputed domain name primarily for the purpose of selling, rendering or transferring the domain name registration to the owner of the trade mark or service mark (normally the Complainant or other interested buyers) for valuable consideration in excess of the Respondent's out-of-pocket costs directly related to the domain name. An annexure was attached to the Complaint indicating that the disputed name (meizu.in) is available for sale on the Sedo site.
- The complete address of the Registrant/ Respondent could not be found and there was no response to the e-mail sent to the Registrant's id as mentioned in the Whois record.
The foregoing circumstances led to the presumption that the domain name in dispute was registered and used by the Respondent in bad faith.
Decision of the NIXI Arbitrator
In light of the aforesaid findings, the Arbitrator held that the Respondent's domain name is confusingly similar to the mark over which the Complainant has rights and that the Respondent has no legitimate rights or interests with respect to the domain name. Hence, the Arbitrator allowed the complaint directing that the Respondent's domain name (meizu.in) be transferred to the Complainant.
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