Seven for All Mankind International SAGL v. Huih Hudint
Claim Number: FA2112001976707
Complainant is Seven for All Mankind International SAGL (“Complainant”), represented by John J. Arnott of Munck Wilson Mandala, LLP, Texas, USA. Respondent is Huih Hudint (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <splendidoutlet.com>, registered with NameSilo, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 10, 2021; the Forum received payment on December 10, 2021.
On December 10, 2021, NameSilo, LLC confirmed by e-mail to the Forum that the <splendidoutlet.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 14, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 3, 2022 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@splendidoutlet.com. Also on December 14, 2021, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On January 7, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant engages in the business of manufacturing, marketing, and selling clothing for women, men, and children.
Complainant asserts rights in the SPLENDID mark through its registration of the mark with multiple trademark agencies around the world, including the United States Patent and Trademark Office (“USPTO”).
Respondent’s <splendidoutlet.com> domain name is identical or confusingly similar to Complainant’s SPLENDID mark, as it incorporates the mark in its entirety, only adding the generic term “outlet” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <splendidoutlet.com> domain name. Complainant has not authorized or licensed Respondent to use the SPLENDID mark, nor is Respondent commonly known by the at-issue domain name. Further, Respondent is not using the domain name for a bona fide offering of goods and services or legitimate noncommercial or fair use as Respondent attempts to pass off as Complainant.
Respondent registered and uses the <splendidoutlet.com> domain name in bad faith. Respondent disrupts Complainant’s business by redirecting users to a competing business, which offers competing goods. Additionally, Respondent attempts to attract users for commercial gain by passing off as Complainant. Further, Respondent had actual and/or constructive notice of Complainant’s rights in the mark, evidenced by Respondent’s use of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the SPLENDID mark.
Complainant’s rights in SPLENDID existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademarks.
Respondent uses the at-issue domain name to pass itself off as Complainant and redirect internet users to a website appearing to be similar to Complainant’s genuine website where Respondent purports to offer competing goods.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant shows it has registered it SPLENDID mark with multiple trademark agencies worldwide. Complainant’s ownership of a national trademark registration for its SPLENDID mark establishes Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(I). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”); see also Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”).
The at-issue domain name consists of Complainant’s SPLENDID trademark followed by the suggestive term “outlet” with all followed by the top level domain name “.com.” The differences between <splendidoutlet.com> and Complainant’s SPLENDID trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <splendidoutlet.com> domain name is confusingly similar to Complainant’s SPLENDID trademark. See MTD Products Inc v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of the at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name ultimately identifies the domain name’s registrant as “Huih Hudint” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known either by <splendidoutlet.com> or by SPLENDID. The Panel therefore concludes that Respondent is not commonly known by the <splendidoutlet.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same).
Respondent uses the confusingly similar <splendidoutlet.com> domain name to pass itself off as Complainant and address a website displaying Complainant’s trademark and logo. The website is similar to Complainant’s genuine website and purports to provide products like those offered by Complainant. Respondent’s use of the <splendidoutlet.com> domain name in this manner fails to indicate either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii) related to the <splendidoutlet.com> domain name. See ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii).”); see also Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
As discussed below without limitation circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent uses the at-issue domain name to offer goods that compete with those offered by Complainant. Using the confusingly similar domain name to offer internet users goods competing with those goods offered by Complainant is disruptive to Complainant’s business and indicates Respondent’s bad faith pursuant to Policy ¶ 4(b)(iii)). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the at-issue domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also ZIH Corp. v. ou yang lin q, FA1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting internet users from Complainant’s website to Respondent’s website where it offered competing printer products).
Moreover, Respondent’s attempt to pass itself off as Complaint by using the confusingly similar domain name to address a website looking like Complainant’s own website also indicates Respondent’s bad faith registration and use of <splendidoutlet.com>. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”).
Finally, Respondent had actual knowledge of Complainant’s rights in the SPLENDID mark when it registered <splendidoutlet.com> as a domain name. Respondent’s actual knowledge is evident given the notoriety of Complainant’s trademark and from Respondent’s use of the domain name to pass itself off as Complainant as setout herein. Respondent’s registration of the confusingly similar <splendidoutlet.com> domain name with knowledge of Complainant’s trademark rights in <splendidoutlet.com> shows Respondent’s bad faith registration and use under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <splendidoutlet.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 10, 2022
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