Farouk Systems, Inc. v.
Pradit Janta c/o Pradit
Claim Number: FA0907001272461
PARTIES
Complainant is Farouk Systems, Inc., (“Complainant”) represented by Anthony Matheny, of Greenberg
Traurig, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chi-iron.us>, registered with Name.com.
PANEL
The undersigned certifies that he or she has acted independently and
impartially and to the best of his or her knowledge has no known conflict in
serving as Panelist in this proceeding.
Tyrus R. Atkinson, Jr., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically on
On
On
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On August 10, 2009, pursuant to Complainant’s request to have the
dispute decided by a single-member Panel, the Forum appointed Tyrus R.
Atkinson, Jr., 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. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. Respondent’s <chi-iron.us> domain name is confusingly similar to Complainant’s CHI mark.
2.
Respondent does not have any rights or
legitimate interests in the <chi-iron.us>
domain name.
3.
Respondent registered and used the <chi-iron.us> domain name in bad
faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, Farouk
Systems, Inc., manufacturers and sells professional-grade hair care products in
over 60 countries worldwide, specializing in hand held hair dryers, flat irons,
and styling irons. As part of its
business, Complainant holds several trademark registrations in the CHI mark
with the United States Patent and Trademark Office (“USPTO”) (e.g. 2,660,257
issued
Respondent registered the <chi-iron.us> domain name on
DISCUSSION
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 the 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 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
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; and
(2) the Respondent has no rights or legitimate
interests in respect of the domain name; and
(3) the domain name has been registered or is
being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical
and/or Confusingly Similar
The Panel finds that Complainant’s trademark
registrations with the USPTO establish its rights in the CHI mark under
Policy ¶ 4(a)(i).
See Microsoft Corp. v. Burkes, FA 652743
(Nat. Arb. Forum
Complainant contends that the <chi-iron.us> domain name is
confusingly similar to its CHI mark under Policy ¶ 4(a)(i). The disputed domain name is composed of (1)
Complainant’s CHI mark; (2) a hyphen; (3) the generic word “iron,” which has an
obvious relationship with Complainant’s hair iron business; and (4) the country
code top-level domain (“ccTLD”) “.us.”
The Panel finds that the <chi-iron.us>
domain name is confusingly similar to Complainant’s CHI mark pursuant to Policy
¶ 4(a)(i). See Health Devices Corp. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Rights
or Legitimate Interests
Pursuant to Policy ¶ 4(a)(ii), Complainant
must first establish a prima facie case that Respondent has no rights or
legitimate interests in the disputed domain name. If the Panel finds that
Complainant’s allegations establish such a prima facie case, the burden
shifts to Respondent to show that it does indeed have rights or legitimate
interests in the disputed domain names pursuant to the guidelines in Policy ¶
4(c). The Panel finds that
Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no rights or legitimate
interests in the <chi-iron.us>
domain name pursuant to Policy ¶ 4(a)(ii). Since
no response was submitted in this case, the Panel may presume that Respondent
has no rights or legitimate interests in the disputed domain name. However, the Panel will still examine the
record in consideration of the factors listed in Policy ¶ 4(c). See Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb.
Forum
There is no evidence in the record to conclude that Respondent owns any
service marks or trademarks that reflect the <chi-iron.us> domain name. Therefore the Panel finds that
Respondent does not have rights and legitimate interests pursuant to Policy ¶
4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum
The Panel finds no evidence in the
record suggesting that Respondent is commonly known by the <chi-iron.us> domain name. Complainant asserts that Respondent has no
license or agreement with Complainant authorizing Respondent to use the CHI
mark, and the WHOIS information identifies Respondent as “Pradit Janta c/o Pradit.” Thus, Respondent has not established rights
or legitimate interests in the disputed domain name under Policy ¶ 4(c)(iii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
The <chi-iron.us> domain name was resolves to a website that
offers Complainant’s goods without Complainant’s consent while claiming to be
Complainant’s official website. Respondent
is attempting to profit by passing itself off as Complainant. The Panel finds this use is not a bona fide offering of goods or service
or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(ii) or (iv). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb.
Forum
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Registration
and Use in Bad Faith
Respondent is attempting to profit from
Internet users who are in search of Complainant’s products online by selling
Complainant’s products without Complainant’s authorization and claiming to be
Complainant’s official online presence on the website resolving from the
disputed domain name. The Panel finds
that Respondent is profiting from Internet users’ confusion as to Complainant’s
association, authorization, or sponsorship of the website resolving from the <chi-iron.us> domain name. The Panel finds this is evidence of bad faith
under Policy ¶ 4(b)(iv). See
Fanuc Ltd v. Mach. Control Servs., FA 93667 (Nat. Arb. Forum
Further, the Panel finds that
Respondent’s attempt to pass itself off as Complainant online is evidence of
bad faith under Policy ¶ 4(a)(iii). See Monsanto Co. v.
Decepticons, FA 101536 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chi-iron.us> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: August 24, 2009
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