Vans Inc. v. Transure Enterprise Ltd a/k/a Host Master
Claim Number: FA0912001300854
Complainant is Vans Inc. (“Complainant”), represented by Paul
D. McGrady, of Greenberg Traurig, LLP,
REGISTRAR
The domain name at issue is <vansgirl.com>, registered with Above, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 6, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 26, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@vansgirl.com. Also on January 6, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. Respondent did not indicate assent to participate in an electronic process; therefore Respondent’s submission was required to be sent in hard copy per the version of UDRP Rule 5 currently in effect.
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 (effective March 1, 2010, but opted-in to by Complainant for this case) "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <vansgirl.com> domain name is confusingly similar to Complainant’s VANS mark.
2. Respondent does not have any rights or legitimate interests in the <vansgirl.com> domain name.
3. Respondent registered and used the <vansgirl.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Vans, Inc., is a
leading action sports lifestyle company who specializes in manufacturing and
marketing products designed for action sports such as skating, skateboarding,
surfing and motor biking. Complainant
owns multiple trademark registrations with the United States Patent and
Trademark Office (“USPTO”) for the VANS mark (e.g., Reg. 1,267,262 issued
Respondent registered the <vansgirl.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 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 owns multiple trademark registrations for the
VANS mark with the USPTO (e.g., Reg.
1,267,262 issued
Complainant argues that Respondent’s <vansgirl.com> domain name is confusingly similar to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent does not have any
rights or legitimate interests in the disputed domain name. Once a prima facie case has been established by Complainant, the burden
then shifts to Respondent to demonstrate its rights or legitimate interests in
the disputed domain name pursuant to Policy ¶ 4(c). The Panel finds that Complainant has
adequately established a prima facie
case in these proceedings. Because
Respondent has failed to respond to the allegations against it, the Panel may
assume that Respondent lacks any rights or legitimate interests in the disputed
domain name. See Intel Corp. v. Macare, FA
660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must
first make a prima facie case that [the] respondent lacks rights and
legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to
show it does have rights or legitimate interests.”); see also American Express
Co. v. Fang Suhendro, FA 129120 (Nat. Arb.
Forum
Complainant contends that Respondent is not commonly known
by the disputed domain name
under Policy ¶ 4(c)(ii). The pertinent WHOIS information for the
disputed domain name identifies the registrant as “Transure Enterprise Ltd
a/k/a Host Master,” and there is no other evidence in the record to suggest
that Respondent is otherwise commonly known by the disputed domain name. Thus,
the Panel concludes that Respondent is not commonly known by the disputed
domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum
July 7, 2006) (concluding that the respondent was not commonly known by the
disputed domain names where the WHOIS information, as well as all other
information in the record, gave no indication that the respondent was commonly
known by the disputed domain names, and the complainant had not authorized the
respondent to register a domain name containing its registered mark); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb.
Forum July 17, 2006) (concluding that the respondent was not
commonly known by the <coppertown.com> domain name where there was no
evidence in the record, including the WHOIS information, suggesting that the
respondent was commonly known by the disputed domain name).
Respondent is using the disputed domain name, which it registered on
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website featuring links to Complainant’s competitors in the shoe industry. The confusingly similar disputed domain name likely attracts Internet users that are attempting to access Complainant’s website. Those Internet users are unknowingly redirected to the websites of Complainant’s competitors. Therefore, the Panel finds that Respondent’s use of the disputed domain name constitutes a disruption of Complainant’s business, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Respondent has created a likelihood of confusion for commercial
gain as to Complainant’s source and affiliation with the disputed domain name
and the resolving website. Respondent is
presumably monetarily benefiting through the receipt of referral fees accrued
when Internet users click on the competitive links. The Panel finds that this constitutes
evidence that Respondent has registered and used the disputed domain name in
bad faith under Policy ¶ 4(b)(iv). See Asbury
Auto. Group, Inc. v.
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 <vansgirl.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 17, 2010
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