Nervous Tattoo, Inc. v. eh
hardy petwear c/o west
Claim Number: FA1002001308681
Complainant is Nervous Tattoo, Inc. (“Complainant”), represented by J.
Andrew Coombs, of J. Andrew Coombs, A Professional Corporation,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <edhardypetwear.com>, registered with Godaddy.com, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 18, 2010; the National Arbitration Forum received a hard copy of the Complaint on February 19, 2010.
On February 18, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <edhardypetwear.com> domain name is registered with Godaddy.com, Inc. and that the Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, 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 22, 2010, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of March 15, 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 email@example.com by e-mail.
Respondent's Response was received on March 20, 2010. However, in that the Response was received subsequent to the Response deadline of March 15, 2010, the Response is considered deficient under ICANN Rule 5.
On March 23, 2010, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant contends among other things, that:
The trademarks are associated with the designs of Don Ed Hardy, a famous tattoo artist who is commonly referred to as the “Godfather of Tattoo.”
Using Hardy’s designs,
Hardy Way, LLC is the sole owner of the trademarks and has granted Complainant the exclusive right and license to design, manufacture, advertise, promote, sell, distribute and license to others the right to design, manufacture, advertise, promote, sell and distribute high quality apparel and various other products bearing the trademarks.
Complainant is also authorized to enforce the trademarks, and Complainant has registered various domain names in connection with the trademarks.
The disputed domain name is confusingly similar to the trademarks, as it incorporates the trademark ED HARDY in its entirety, while adding only a generic word.
Respondent is not authorized by Complainant to use the trademarks.
Respondent registered and uses the domain name to infringe Complainant’s rights in the trademarks and to trade off of Complainant’s goodwill.
Respondent uses the domain name to direct Internet users to its own store, which competes directly with the business of Complainant.
Respondent’s use of the domain name does not constitute a bona fide offering of goods or services.
Respondent is not and has not been commonly known by the domain name.
Respondent has no legitimate interest in the domain name.
Respondent is intentionally using the domain name to attract, for commercial gain, Internet users to a website by creating a likelihood of confusion with Complainant’s trademarks as to the source, sponsorship, affiliation or endorsement of the website, or of a product or service offered through the website.
Respondent knew of the trademarks before registering the domain name.
Respondent evidences bad faith in its failure to cease and desist from wrongful use of the domain name after being notified by Complainant of the unauthorized use.
Respondent contends that:
“Respondent’s has none or any interest in the Domain Names and Respondent’s are willfully transferring or surrendering or dropping of the Domain Name Ed Hardy Pet Wear to Hardy Way, LLC….”
Paragraph 4(a) of the Policy requires that, in the ordinary course, Complainant must prove each of the following to obtain from a Panel an order that a domain name be transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Notwithstanding the foregoing, Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Further, Policy ¶ 3(a) provides for
the transfer of a domain name registration upon the written instructions of the
parties to a UDRP proceeding without the need for otherwise required findings
and conclusions (see Malev Hungarian
Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat. Ar. Forum
Respondent’s Response does not contest the material allegations of the Complaint, and, in particular it does not contest Complainant’s request that the disputed domain name be transferred to Complainant. Thus the parties have effectively agreed in writing to a transfer of the subject domain name from Respondent to Complainant without the need for further proceedings.
It is therefore Ordered that the <edhardypetwear.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: April 6, 2010
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum