eLuxury.com Inc. v. Domainnameagent c/o Domain Administrator
Claim Number: FA0709001080798
Complainant is eLuxury.com Inc. (“Complainant”), represented by Julie
L. Fieber, of Folger Levin & Kahn LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <eluxury.net>, registered with eNom, Inc.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On October 4, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 24, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@eluxury.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <eluxury.net> domain name is identical to Complainant’s ELUXURY mark.
2. Respondent does not have any rights or legitimate interests in the <eluxury.net> domain name.
3. Respondent registered and used the <eluxury.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, eLuxury.com Inc.,
is an online retailer selling consumer products such as cosmetics, fragrances,
apparel, fashion accessories, and leather goods. Complainant owns four federal trademark
registrations through the United States Patent and Trademark Office (“USPTO”),
including the ELUXURY mark registered on
Respondent registered the <eluxury.net>
domain name on
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant asserts rights in the ELUXURY mark through
registration with the USPTO. The Panel
finds that Complainant’s federal trademark registration and use in commerce
sufficiently establishes its rights in the ELUXURY mark pursuant to Policy ¶
4(a)(i). See Vivendi
Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum
Respondent’s <eluxury.net>
domain name is identical to Complainant’s ELUXURY mark. Respondent’s domain name contains
Complainant’s ELUXURY mark in its entirety and adds the generic top-level
domain (“gTLD”) “.net.” Panels have long
held that the addition of a gTLD is irrelevant in determining whether a domain
name is identical or confusingly similar to an established mark. See Nike, Inc. v. Coleman, D2000-1120
(WIPO
The Panel finds that
Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have rights or legitimate interests in the <eluxury.net> domain name. Under certain circumstances, Complainant’s assertion may establish a prima facie case, resulting in a burden shift from Complainant to Respondent to establish that it does have rights and legitimate interests in the disputed domain names. The Panel finds that Complainant has met its burden in the instant case. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”). Because Respondent has failed to respond to Complainant’s complaint, the Panel infers that Respondent does not have rights and legitimate interests in the <eluxury.net> domain name under Policy ¶ 4(a)(ii). See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel chooses to examine the evidence under the Policy ¶ 4(c) elements.
Complainant contends that Respondent is neither commonly known by the <eluxury.net> domain name nor licensed to register names featuring Complainant’s ELUXURY mark. The Panel finds that without evidence suggesting otherwise, Respondent has not established rights or legitimate interests in the <eluxury.net> domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
Complainant has submitted evidence that Respondent is using its <eluxury.net> domain name to resolve to a website that features links to various websites offering consumer product services in competition with the services offered by Complainant. The Panel infers from Respondent’s use that it is presumably collecting referral fees for each misdirected Internet user. The Panel finds that Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Prudential Ins. Co. of Am. v. Stonybrook Invs., LTD, FA 100182 (Nat. Arb. Forum Nov. 15, 2001) (finding no rights or legitimate interests in the disputed domain name where the respondent was using the complainant’s mark to redirect Internet users to a website offering credit card services unrelated to those services legitimately offered under the complainant’s mark); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the <eluxury.net> domain name to operate a website that provides Internet users with links to various competing websites that offer consumer retail services. The Panel finds that Respondent’s use of the disputed domain name constitutes a disruption of Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Furthermore, Respondent’s use will likely cause confusion as to Complainant’s sponsorship of and affiliation with the resulting websites. The Panel finds that use of confusingly similar domain names for Respondent’s own commercial gain is additional evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Anne of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) because the respondent admittedly used the complainant’s well-known mark to attract users to the respondent's website).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <eluxury.net> domain name be TRANSFERRED from Respondent to Complainant.
Dated: November 12, 2007
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