Juicy Couture, Inc. v. Chinasupply c/o Tan Longli
Claim Number: FA0808001222544
Complainant is Juicy Couture, Inc. (“Complainant”), represented by Gene
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cheapjuicy.com>, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 29, 2008; the National Arbitration Forum received a hard copy of the Complaint on September 5, 2008.
On August 29, 2008, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <cheapjuicy.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On September 10, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 30, 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.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 8, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
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 <cheapjuicy.com> domain name is confusingly similar to Complainant’s JUICY mark.
2. Respondent does not have any rights or legitimate interests in the <cheapjuicy.com> domain name.
3. Respondent registered and used the <cheapjuicy.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Juicy Couture, Inc., owns the world famous apparel and fashion lifestyle mark JUICY, which has been registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,285,232 issued Oct. 12, 1999). Complainant’s products under the JUICY mark are sold at high-end department stores, and are well-known among the consuming public.
Respondent registered the disputed <cheapjuicy.com> domain name on April 9, 2008, and is currently using the disputed domain name to host a website that sells products that are counterfeits of Complainant’s own products.
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.
The Panel finds that
Complainant’s evidence of registration of the JUICY mark with with the USPTO
confers rights in the mark upon Complainant for the purposes of Policy ¶ 4(a)(i).
Respondent’s disputed domain name merely adds the generic
word “cheap” to the JUICY mark, and adds the generic top-level domain
“.com.” Neither addition adds any
meaningful distinction, and therefore the Panel finds that the disputed domain
name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Jerry Damson, Inc. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights and
legitimate interests in the disputed domain name. The Panel finds that Complainant has set
forth a sufficient prima facie case
supporting this allegation, and that Respondent receives the burden of showing
its rights or legitimate interests. See SEMCO Prods.,
LLC v. dmg world media (
There is no
evidence within the record to suggest that Respondent is commonly known by the
disputed domain name. The WHOIS information
lists Respondent as “Chinasupply c/o Tan
Longli,” and Complainant does
not allege any right or permission on behalf of Respondent to use Complainant’s
mark in any fashion. The Panel therefore
finds that Respondent is not commonly known by the disputed domain name under
Policy ¶ 4(c)(ii).
See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA
740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not
commonly known by the <cigaraficionada.com> domain name under Policy ¶
4(c)(ii) based on the WHOIS information and other evidence in the record); see also
Complainant alleges that Respondent is using the disputed domain name
to sell counterfeit versions of Complainant’s products, and that such use
competes with Complainant’s retail business.
The Panel finds that this use fails to constitute 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). See Summit Group, LLC v.
LSO, Ltd., FA 758981 (Nat.
Sept. 14, 2006) (finding that the respondent’s use of the complainant’s
LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website
for commercial gain does not constitute either 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)); see also Hewlett-Packard Co. v.
Inversiones HP Milenium
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s diversionary use of the disputed domain name to sell counterfeit versions of Complainant’s products has disrupted Complainant’s business. The Panel finds that Respondent engaged in bad faith registration and use under Policy ¶ 4(b)(iii). See EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business); see also 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)).
Complainant also asserts that Respondent has engaged in such usage for commercial benefit in violation of Policy ¶ 4(b)(iv). The Panel therefore finds that Respondent engaged in bad faith registration and use under Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Carroll, FA 97035 (Nat. Arb. Forum May 14, 2001) (finding bad faith where the respondent used the domain name, for commercial gain, to intentionally attract users to a direct competitor of the complainant); 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 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 <cheapjuicy.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 13, 2008
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