Charlotte Russe Merchandising, Inc. v. Samir Kumar c/o samirnet -domain names for sale
Claim Number: FA1001001302325
Complainant is Charlotte
Russe Merchandising, Inc. (“Complainant”), represented by CitizenHawk, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <charlotterusseclothing.com> registered with Sitename.com Llc, and <charlotterussestores.com> registered with Galcomm, Inc.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 11, 2010; the National Arbitration Forum received a hard copy of the Complaint on January 12, 2010.
On January 12, 2010, Sitename.Com Llc, confirmed by e-mail to the National Arbitration Forum that the <charlotterusseclothing.com> domain name is registered with Sitename.Com Llc and that Respondent is the current registrant of the name. Sitename.Com Llc has verified that Respondent is bound by the Sitename.Com Llc 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 12, 2010, Sitename.Com Llc, Galcomm, Inc. confirmed by e-mail to the National Arbitration Forum that the <charlotterussestores.com> domain name is registered with Galcomm, Inc. and that Respondent is the current registrant of the name. Galcomm, Inc. has verified that Respondent is bound by the Galcomm, 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 February 2, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 22, 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@charlotterusseclothing.com and postmaster@charlotterussestores.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 2, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 <charlotterusseclothing.com> and <charlotterussestores.com> domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark.
2. Respondent does not have any rights or legitimate interests in the <charlotterusseclothing.com> and <charlotterussestores.com> domain names.
3. Respondent registered and used the <charlotterusseclothing.com> and <charlotterussestores.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Charlotte Russe Merchandising, Inc., is a
mall-based retailer of apparel and accessories.
Complainant has operated its mall-based stores since 1975 and now owns
over five hundred different stores.
Complainant has used its CHARLOTTE RUSSE mark to offer its apparel
products since it began operation.
Complainant holds multiple trademark registrations with the United
States Patent and Trademark Office ("USPTO") for its CHARLOTTE RUSSE
mark (e.g., Reg. No. 1,485,692 issued
Respondent, Samir Kumar, registered the <charlotterusseclothing.com>
and <charlotterussestores.com>
domain names no earlier than
Respondent has been the respondent in
other UDRP proceedings in which disputed domain names were transferred from
Respondent to the respective complainants in those cases. See
Neiman Marcus Group, Inc. v. Kumar, FA 1267257 (Nat. Arb. Forum July 22,
2009); see also Balenciaga
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.
Previous panels have found that a complainant establishes
rights in a mark through registration of a mark with a governmental trademark
authority. Therefore, the Panel finds
that Complainant has established rights under Policy ¶ 4(a)(i) in the CHARLOTTE
RUSSE mark through its registrations with the USPTO (e.g., Reg. No. 1,485,692 issued
Complainant argues that Respondent’s <charlotterusseclothing.com> and <charlotterussestores.com> domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark. The disputed domain names combine Complainant’s entire mark with a descriptive term, either “stores” or “clothing,” that relates to Complainant’s apparel store business and the generic top-level domain (“gTLD”) “.com.” The Panel finds the addition of a descrptive term is insufficient to adequately distinguish the disputed domain name from Complainant’s mark and that the addition of a gTLD is irrelevant when conducting a Policy ¶ 4(a)(i) analysis. See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either the addition of an ordinary descriptive word . . . nor the suffix ‘.com’ detract from the overall impression of the dominant part of the name in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is satisfied); see also Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”). Therefore, the Panel concludes that Respondent’s <charlotterusseclothing.com> and <charlotterussestores.com> domain names are confusingly similar to Complainant’s CHARLOTTE RUSSE mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged Respondent does not have rights or legitimate interests in the <charlotterusseclothing.com> and <charlotterussestores.com> domain names. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain names. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c). 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 Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence).
The WHOIS information, provided by Complainant, lists the
domain name registrant as “Samir Kumar.”
Respondent fails to offer evidence contradicting this information and
showing Respondent is commonly known by the <charlotterusseclothing.com>
and <charlotterussestores.com>
domain names. There is no other evidence on the record
showing Respondent is commonly known by the disputed domain names. Complainant further asserts that Respondent
is not authorized to use the CHARLOTTE RUSSE mark. Therefore the Panel finds that Respondent is
not commonly known by the <charlotterusseclothing.com> and <charlotterussestores.com>
domain names pursuant to Policy ¶
4(c)(ii). See St. Lawrence Univ.
v. Nextnet Tech, FA 881234 (Nat.
Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate
interests in a disputed domain name where there was no evidence in the record
indicating that the respondent was commonly known by the disputed domain name); see
also Educ. Broad. Corp. v.
DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (concluding
that the respondent was not commonly known by the <thirteen.com> domain
name based on all evidence in the record, and the respondent did not counter
this argument in its response).
Respondent’s <charlotterusseclothing.com> and <charlotterussestores.com> domain names resolve to websites featuring lists of hyperlinks, including links to Complainant’s competitors in the mall-based apparel store industry. Complainant alleges Respondent profits from the hyperlinks through the receipt of click-through fees. The Panel finds Respondent’s use of the confusingly similar disputed domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was 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)).
The Panel finds
Complainant has satisfied Policy ¶ 4(c)(ii).
Complainant alleges Respondent’s use of the <charlotterusseclothing.com>
and <charlotterussestores.com>
domain names are a part of a pattern of
bad faith use and registration.
Respondent has been a respondent in multiple other UDRP
proceedings in which disputed domain names were transferred from Respondent to
the complainants in those cases. See Neiman Marcus Group, Inc. v. Kumar,
FA 1267257 (Nat. Arb. Forum July 22, 2009); see
also Balenciaga
Previous panels have found a respondent’s use of a
confusingly similar website featuring a list of hyperlinks to third-parties
which compete with Complainant constitutes a disruption of a complainant’s
business. See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007)
(finding bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a
respondent used the disputed domain name to operate a commercial search engine
with links to the complainant’s competitors); see also Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum
July 24, 2006) (finding that the respondent engaged in bad faith registration
and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to
operate a commercial search engine with links to the products of the
complainant and to complainant’s competitors, as well as by diverting Internet
users to several other domain names).
Respondent’s <charlotterusseclothing.com> and <charlotterussestores.com>
domain names resolve to websites that
feature lists of hyperlinks to third-parties, including hyperlinks to
Complainant’s competitors in the mall-based apparel store business. The Panel finds Respondent’s use of the
disputed domain name disrupts Complainant’s mall-based apparel store business
and constitutes bad faith registration and use under Policy ¶ 4(b)(iii).
Complainant alleges, and the Panel infers, that Respondent profits from its receipt of click-through fees from its list of hyperlinks. Respondent is attempting to profit by creating a likelihood of confusion as to Complainant’s affiliation with the disputed domain names and resolving websites. Therefore, the Panel finds Respondent’s use of the disputed domain names constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant).
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 <charlotterusseclothing.com> and <charlotterussestores.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: March 16, 2010
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