Affliction, Inc. v. hedong li c/o lizhedong
Claim Number: FA0808001220826
Complainant is Affliction, Inc. (“Complainant”), represented by Amanda
J. McLaughlin, of Burkhalter Kessler Goodman & George,
LLP,
REGISTRAR
The domain name at issue is <afflictionclothing.org>, registered with Bizcn.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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On August 26, 2008, a Chinese language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 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 postmaster@afflictionclothing.org 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.
Pursuant to Rule 11(a) the Panel determines that
the language requirement has been satisfied through the Chinese language
Complaint and Commencement Notification and, absent a Response, determines that
the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <afflictionclothing.org> domain name is confusingly similar to Complainant’s AFFLICTION mark.
2. Respondent does not have any rights or legitimate interests in the <afflictionclothing.org> domain name.
3. Respondent registered and used the <afflictionclothing.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Affliction, Inc., has
used its AFFLICTION mark since 2005 in conjunction with apparel and
accessories. Complainant has also
expanded its AFFLICTION mark to cover mixed martial arts fight promotions. Complainant registered its AFFLICTION mark
with the United States Patent and Trademark Office (“USPTO”) on
Respondent registered the disputed 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 registered its AFFLICTION mark with the USPTO on
Respondent’s disputed domain name fully incorporates Complainant’s AFFLICTION mark with the additions of the descriptive term “clothing,” and the generic top-level domain “.com.” The Panel finds these alterations do not sufficiently differentiate Respondent’s disputed domain name from Complainant’s mark. See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied).
Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). Accordingly, the Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or
legitimate interests in the disputed domain name. Once Complainant presents a
prima facie case supporting these
allegations, the burden shifts to Respondent to establish otherwise. The Panel finds Complainant has presented a
sufficient prima facie case to
support its allegations. Respondent
failed to submit a response in these proceedings. Therefore, the Panel may assume Respondent
does not have rights or legitimate interests in the disputed domain name
pursuant to Policy ¶ 4(a)(ii). However, the Panel will inspect the record
and determine whether there is evidence against Complainant’s allegations under
Policy ¶ 4(c). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug.
21, 2000) (holding that once the complainant asserts that the respondent has no
rights or legitimate interests with respect to the domain, the burden shifts to
the respondent to provide “concrete evidence that it has rights to or
legitimate interests in the domain name at issue”); see also 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).
Respondent’s disputed domain name
resolves to a website that markets apparel bearing designs and logos similar to
those on Complainant’s goods. The Panel
finds Respondent’s use of the disputed domain name is not a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i), or a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Complainant maintains Respondent
is not commonly known by the disputed domain name. The WHOIS information lists Respondent as “hedong
li c/o lizhedong.” Complainant states it
has never authorized Respondent to use its AFFLICTION mark in any manner. Therefore, the Panel finds Respondent is not
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar.
14, 2000) (finding no rights or legitimate interest where the respondent was
not commonly known by the mark and never applied for a license or permission
from the complainant to use the trademarked name); see also Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds Respondent’s use of the disputed domain name
to market clothing products with designs and logos that are similar to
Complainant’s constitutes disruption and is evidence of bad faith registration
and use pursuant to Policy ¶ 4(b)(iii). See
Lambros v. Brown, FA 198963 (Nat. Arb. Forum
Respondent is using the confusingly similar disputed domain name to market products similar to Complainant’s. Respondent’s use of the disputed domain name demonstrates an attempt to profit from the goodwill Complainant has built in its AFFLICTION mark. The Panel finds Respondent’s use of the disputed domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark).
The Panel finds 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 <afflictionclothing.org> domain name be TRANSFERRED from Respondent to Complainant.
Dated: October 7, 2008
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