Nervous Tattoo, Inc. and Audigier Brand Management Group, LLC v. liuhongjunliuhongjun c/o liuhongjun
Claim Number: FA0912001300551
Complainant is Nervous Tattoo, Inc. and Audigier Brand Management Group, LLC (“Complainant”), represented by J. Andrew Coombs, of J. Andrew Coombs, A Professional Corporation, California, USA. Respondent is liuhongjunliuhongjun c/o liuhongjun (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <christianaudigierus.com> and <edhardyshop123.com>, registered with Xin Net Technology Corporation.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 23, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 28, 2009.
On December 28, 2009, Xin Net Technology Corporation confirmed by e-mail to the National Arbitration Forum that the <christianaudigierus.com> and <edhardyshop123.com> domain names are registered with Xin Net Technology Corporation and that Respondent is the current registrant of the names. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 January 5, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 25, 2010 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@christianaudigierus.com and postmaster@edhardyshop123.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 29, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <christianaudigierus.com> domain name is confusingly similar to Complainant’s CHRISTIAN AUDIGIER mark. Respondent’s <edhardyshop123.com> domain name is confusingly similar to Complainant’s ED HARDY mark
2. Respondent does not have any rights or legitimate interests in the <christianaudigierus.com> and <edhardyshop123.com> domain names.
3. Respondent registered and used the <christianaudigierus.com> and <edhardyshop123.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Audigier Brand Management
Group, LLC and Nervous Tattoo, Inc., referred to collectively as Complainant,
are affiliated companies manufacturing and selling clothing and accessories
around the world. Complainant holds
several trademark registrations of the marks CHRISTIAN AUDIGIER (e.g., Reg. No. 3,348,997 issued
Respondent, liuhongjunliuhongjun c/o liuhongjun, registered the <christianaudigierus.com> and <edhardyshop123.com> domain names on July 16, 2009 and July 17, 2009, respectively. The disputed domain names resolve to commercial websites offering products that compete with Complainant.
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 has provided evidence of the registration of its
marks with the USPTO. The Panel finds
Complainant established rights in the CHRISTIAN AUDIGIER (e.g., Reg. No. 3,348,997 issued
Complainant
contends that the <christianaudigierus.com>
domain name is confusingly similar to its CHRISTIAN AUDIGIER
mark. The disputed domain name contains
the mark in its entirety, omitting the space between the words of the mark,
adding the geographic identifier “us,” and adding the generic top-level domain
“.com.” The Panel finds none of these
alterations prevent a finding of confusing similarity under Policy ¶ 4(a)(i). See Bond
& Co. Jewelers, Inc. v.
Complainant
contends that the <edhardyshop123.com> domain name is
confusingly similar to its ED HARDY mark.
This disputed domain name contains Complainant’s ED HARDY mark with the
space omitted, the generic word “shop” added, the numerals “123” added, and the gTLD “.com” added. As Complainant’s mark remains the dominant
portion of the disputed domain name, the Panel finds Respondent’s <edhardyshop123.com> domain name is confusingly similar to Complainant’s ED
HARDY mark under Policy ¶ 4(a)(i). See Bond & Co. Jewelers, Inc., supra; see also Am. Online, Inc. v.
iDomainNames.com, FA 93766 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant claims Respondent lacks rights and legitimate
interests in the disputed domain names under Policy ¶ 4(a)(ii). Complainant has the initial burden of showing
that Respondent does not have rights or legitimate interests in the disputed
domain names. Once
Complainant has made a prima facie
case, the burden shifts to Respondent to show that it does have rights or
legitimate interests in the disputed
domain names. See Compagnie
Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376
(WIPO
Complainant asserts Respondent has no authorization from
Complainant to use either of its CHRISTIAN AUDIGIER or ED HARDY marks. The
WHOIS registration information fails to indicate any connection to the disputed
domain names. The Panel finds no
evidence in the record suggesting that Respondent is commonly known by the
either of the disputed domain names under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Respondent is using the disputed domain names to resolve to
websites offering goods that compete with Complainant’s fashion products. The Panel finds Respondent is using
Complainant’s marks to compete with Complainant, which is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i), or a legitimate noncommercial
or fair use under Policy ¶ 4(c)(iii). See Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain names resolve to websites
marketing fashion products that directly compete with Complainant. The Panel finds Respondent is disrupting
Complainant’s business by its use of the competing and confusingly similar
disputed domain names. The Panel finds
Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii). See S. Exposure
v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum
Respondent is using the confusingly similar disputed domain
names to offer competitive goods.
Likely, Internet users may become confused as to Complainant’s affiliation
with the disputed domain names and resulting websites. Presumably Respondent is attempting to profit
from this confusion through its sale of the competing goods. The Panel finds Respondent’s attempt to
profit from this confusion is evidence of bad faith registration and use under
Policy ¶ 4(b)(iv).
See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb.
Forum
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 <christianaudigierus.com> and <edhardyshop123.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: February 12, 2010
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