Farhad Parsie v. Vie Vie Boutique
Claim Number: FA0803001158835
Complainant is Farhad Parsie (“Complainant”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vievieboutique.com>, registered with GoDaddy.com, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum
On March 26, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of April 15, 2008 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 email@example.com by e-mail.
A timely Response was received and determined to be complete on
An Additional Submission was received from Complainant on
Complainant submitted a timely Additional Submission which was considered by the Panel.
The Complainant filed an Additional Submission which was considered by the Panel.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <vieviebotique.com> domain name, the domain name at issue, is identical or confusingly similar to Complainant’s VIEVIE trademark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue.
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent makes the following assertions:
1. Respondent had rights in VIE VIE BOTIQUE prior to any registration of a trademark by Complainant for VIEVIE.
2. Respondent has rights in the domain name at issue by virtue of using VIE VIE BOTIQUE in business to sell clothing since 2002.
3. Respondent did not register nor has it used the domain name at issue in bad faith.
C. Additional Submissions
Complainant filed an Additional Submission which was reviewed by the Panel.
Complainant registered the
VIEVIE mark with the United States Patent and Trademark Office (“USPTO”) (Reg.
No. 3,226,506 issued
Respondent has filed a Response supported by no evidence whatsoever alleging as a defense that she has been in business since 2002 at various locations using the mark VIE VIE BOTIQUE and that registration of the domain name at issue was in support of that business.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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 has rights in the VIEVIE mark through
registration of the mark with the United States Patent and Trademark Office
(“USPTO”) (Reg. No. 3,226,506 issued
is confusingly similar to Complainant’s VIEVIE mark given that the disputed
domain name incorporates Complainant’s entire mark, while adding the generic
word “boutique” and the generic top-level domain (“gTLD”) “.com.” Generic top-level domains are irrelevant to a
Policy ¶ 4(a)(i) analysis, and generic words that describe a complainant’s
operations also fail to distinguish a disputed domain name. Accordingly, Respondent’s disputed domain
name is confusingly similar to Complainant’s mark pursuant to Policy ¶
4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has made a prima facie
case that Respondent lacks rights and legitimate interests in the disputed
domain name under Policy ¶ 4(a)(ii); accordingly, the burden shifts to
Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum
Respondent has provided no proof whatsoever
that her business is commonly known by the <vievieboutique.com> domain name. The WHOIS domain name registration
information lists the registrant as “Vie Vie Boutique,” and Respondent asserts
that she is commonly known by the disputed domain name. However, in light of the inadequate evidence
to support Respondent’s contentions, the Panel finds that that Respondent is
not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Yoga Works, Inc. v. Arpita, FA
155461 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s registration and use
of the VIE VIE mark within the disputed domain name has caused substantial
confusion among Complainant’s customers, particularly since the Parties both
sell clothing for women in the San Francisco Bay Area. Respondent has engaged
in bad faith registration and use of the disputed domain name, as it caused a
likelihood of confusion for commercial gain regarding the source and
affiliation of the disputed domain name and corresponding website. See Luck's
Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum
Respondent should have been aware, or alternatively, was constructively aware
of Complainant’s rights in the VIE VIE mark given Complainant’s store in
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 <vievieboutique.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Panelist
Dated: April 28, 2008
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