Audigier Brand Management Group, LLC v. Private Whois Service
Claim Number: FA1003001313253
Complainant is Audigier Brand Management Group, LLC (“Complainant”), represented by J.
Andrew Coombs, of J. Andrew Coombs, A Professional
Corporation,
REGISTRAR
The domain name at issue is <christian-audigier.net>, registered with Internet.bs Corp.
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 March
22, 2010, the Forum served the Complaint and all Annexes, including a
Written Notice of the Complaint, setting a deadline of April 12, 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@christian-audigier.net. Also on
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 "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 <christian-audigier.net> domain name is confusingly similar to Complainant’s CHRISTIAN AUDIGIER mark.
2. Respondent does not have any rights or legitimate interests in the <christian-audigier.net> domain name.
3. Respondent registered and used the <christian-audigier.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Audigier Brand Management Group, is the owner
of the “Christian Audigier” brand of luxury clothing and fashion related
items. Complainant owns several
trademark registrations with the United States Patent and Trademark Office
(“USPTO”) for its CHRISTIAN AUDIGIER mark (e.g.
Reg. No. 3,348,997 issued on
Respondent registered the <christian-audigier.net>
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.
The Panel finds that Complainant has established rights in
the CHRISTIAN AUDIGIER mark for purposes of Policy ¶ 4(a)(i) through it
trademark registrations with the USPTO (e.g.
Reg. No. 3,348,997 issued on December 4, 2007).
Complainant argues that Respondent’s <christian-audigier.net> domain name
is confusingly similar to its CHRISTIAN AUDIGIER mark. Complainant notes that the disputed domain
name contains its entire mark while adding a hyphen between the words of
Complainant’s mark and the generic top-level domain (“gTLD”) “.net.” The Panel finds that the disputed domain name
is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i) because it encompasses Complainant’s entire mark, while
merely adding a hyphen and the gTLD “.net.”
See Health
Devices Corp. v.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant argues that Respondent lacks rights and legitimate interests in the disputed domain name. According to Policy ¶ 4(a)(ii), Complainant is required to first present a prima facie case, which then shifts the burden to Respondent to demonstrate rights and legitimate interests in the disputed domain name. Complainant adequately established a prima facie case in these proceedings, but Respondent has failed to respond. The Panel, therefore, finds that Complainant’s allegations are true and that Respondent lacks rights and legitimate interests in the disputed domain name. See American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”). The Panel elects, however, to consider the evidence presented in light of the Policy ¶ 4(c) factors to determine whether Respondent has any rights and legitimate interests in the <christian-audigier.net> domain name.
Complainant argues that Respondent is not commonly known by the <christian-audigier.net> domain name, which demonstrates that Respondent lacks rights and legitimate interests in the disputed domain name. The WHOIS information for the disputed domain name does not indicate that Respondent is commonly known by the disputed domain name. Respondent does not provide any evidence to suggest that it is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). See America W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name “Ilyoup Paik a/k/a David Saunders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001) (finding no rights or legitimate interests because the respondent is not commonly known by the disputed domain name or using the domain name in connection with a legitimate or fair use).
Respondent’s disputed domain name resolves to a website that displays clothing and fashion related items for sale in competition with Complainant. Further, Complainant argues that some of the products displayed are counterfeit versions of Complainant’s products. The Panel finds that Respondent’s use of the confusingly similar <christian-audigier.net> domain name to display products for sale, both in competition with Complainant and in violation of Complainant’s licensed product seller agreement, is not a use in connection with 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 Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors); see also National Collegiate Athletic Ass’n v. Halpern, D2000-0700 (WIPO Dec. 10, 2000) (finding that the use of the domain names to sell the complainant’s goods without the complainant’s authority, as well as others’ goods, is not a bona fide use); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant argues that Respondent’s use of its mark to sell
Complainant’s products and the products of Complainant’s competitors creates a
disruption to its business. Complainant
asserts that Internet users will be confused as to the affiliation of the
website resolving from the <christian-audigier.net>
domain name and that many Internet users will purchase products from Respondent
because of this confusion. The Panel
finds that Respondent’s use of the disputed domain name to sell unauthorized
products of Complainant, as well as the products of Complainant’s competitors,
results in a disruption of Complainant’s business, and is evidence of bad faith
registration and use under Policy ¶ 4(b)(iii).
See G.D. Searle & Co. v. Celebrex Cox-2
Vioxx.com, FA 124508 (Nat. Arb. Forum Oct. 16, 2002)
(“Unauthorized use of Complainant’s CELEBREX mark to sell Complainant’s
products represents bad faith use under Policy ¶ 4(b)(iii).”); see also
Complainant further argues that Respondent’s use of the
confusingly similar domain name to divert Internet users to its website, where
it profits from the sale of goods in competition with Complainant is further
evidence of bad faith registration and use.
The Panel finds that Respondent’s registration and use of the <christian-audigier.net> domain name
was made in bad faith under Policy ¶ 4(b)(iv), where
it is profiting commercially by intentionally attracting Internet users to its
website. See Hunter Fan Co. v. MSS, FA 98067
(Nat. Arb. Forum Aug. 23, 2001)
(finding bad faith where the respondent used the disputed domain name to sell
the complainant’s products without permission and mislead Internet users by
implying that the respondent was affiliated with the complainant); see also Compaq Info. Techs. Group, L.P. v. Waterlooplein Ltd., FA 109718 (Nat. Arb. Forum May
29, 2002) (finding that the respondent’s use of the <compaq-broker.com>
domain name to sell the complainant’s products “creates a likelihood of
confusion with Complainant's COMPAQ mark as to the source, sponsorship, or
affiliation of the website and constituted bad faith pursuant to Policy ¶
4(b)(iv)”); see also Fossil Inc. v. NAS, FA 92525 (Nat. Arb.
Forum Feb. 23, 2000) (finding that the respondent acted in bad faith by
registering the <fossilwatch.com> domain name and using it to sell
various watch brands where the respondent was not authorized to sell the
complainant’s goods).
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 <christian-audigier.net> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: May 3, 2010
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