Juicy Couture, Inc. v. Francisco Gibbs
Claim Number: FA0911001296086
Complainant is Juicy Couture, Inc. (“Complainant”), represented by Gene
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <juicycouturewholesale.com>, registered with 1 Api Gmbh.
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
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 30, 2009, 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 <juicycouturewholesale.com> domain name is confusingly similar to Complainant’s JUICY COUTURE mark.
2. Respondent does not have any rights or legitimate interests in the <juicycouturewholesale.com> domain name.
3. Respondent registered and used the <juicycouturewholesale.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Juicy Couture,
Inc., purchased the JUICY COUTURE mark in 2003 and uses the mark in
connection with men’s, women’s, and children’s apparel, toiletries, paper
products, and accessories such as eyeglasses, sunglasses, handbags, and
luggage. The United States Patent and
Trademark Office (“USPTO”) has issued Complainant multiple registrations of the
mark (e.g., Reg. No. 2348674 issued
Respondent registered the <juicycouturewholesale.com>
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
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 multiple registrations of
its JUICY COUTURE mark with the USPTO (e.g., Reg. No. 2348674 issued
The <juicycouturewholesale.com>
domain name incorporates Complainant’s JUICY
COUTURE mark in its entirety, removes the space
between the words in the mark and adds the generic term “wholesale.” The addition of a generic term to
Complainant’s registered mark typically renders the disputed domain name
confusingly similar to the mark, and the use of the generic top-level domain
“.com” and omission of a space is without significance to this analysis. Therefore, the Panel finds the disputed
domain name confusingly similar to Complainant’s JUICY COUTURE mark pursuant to Policy ¶ 4(a)(i). See Oki
Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
The initial burden under Policy ¶ 4(a)(ii)
is on Complainant to prove that Respondent does not have any rights or
legitimate interests in the disputed domain name. Once Complainant has made a
prima facie case, the burden shifts
to Respondent to show that it does have rights or legitimate interests pursuant
to the directions provided in Policy ¶ 4(c). See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <juicycouturewholesale.com>
domain name. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the JUICY COUTURE mark, and the WHOIS information identifies Respondent
as “Francisco Gibbs.” Thus, the Panel finds that Respondent is not
commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
According to Complainant, the <juicycouturewholesale.com> domain name is being used in
association with a website that offers counterfeits of Complainant’s products
for sale without authorization. Such use
for the purpose of benefiting from the goodwill associated with Complainant’s JUICY
COUTURE mark does not constitute a bona
fide offering of goods or services under Policy ¶ 4(c)(i). Furthermore, Respondent’s use of the JUICY
COUTURE mark in the domain name to operate a competing website for profit is
not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free
Cmty. Access, FA 180704 (Nat.
Arb. Forum
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s use of Complainant’s JUICY COUTURE mark in the <juicycouturewholesale.com> domain
name to offer counterfeits of Complainant’s products without
authorization suggests that Respondent registered the disputed domain
name intending to disrupt Complainant’s business. The Panel finds that this is evidence of bad
faith registration and use under Policy ¶ 4(b)(iii). See S.
Exposure v. S. Exposure, Inc., FA 94864 (Nat.
Arb. Forum
Additionally, Respondent is using the <juicycouturewholesale.com> domain
name in bad faith pursuant to Policy ¶ 4(b)(iv),
because Respondent is using Complainant’s JUICY COUTURE mark to attract Internet
users to a website that offers counterfeits of Complainant’s products. This is evidence that Respondent is
attempting to profit by creating a likelihood of confusion between
Complainant’s mark and Respondent’s competing website. See Kmart v. Khan, FA
127708 (Nat. Arb. Forum
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <juicycouturewholesale.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 13, 2010
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