Liza Wong v. Charles Patrick
Claim Number: FA1004001318527
Complainant is Liza Wong (“Complainant”), represented by Liza
The domain name at issue is <eliteskincare.org>, registered with Melbourne IT, Ltd.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On April 19, 2010, the Forum served
the Complaint and all Annexes, including a Written Notice of the Complaint,
setting a deadline of May 10, 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
firstname.lastname@example.org. Also on
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <eliteskincare.org> domain name is identical to Complainant’s ELITE SKIN CARE mark.
2. Respondent does not have any rights or legitimate interests in the <eliteskincare.org> domain name.
3. Respondent registered and used the <eliteskincare.org> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Liza Wong, holds
a trademark registration with the United States Patent and Trademark Office
(“USPTO”) for the ELITE SKIN CARE mark (Reg. No. 2,821,236 issued
Respondent, Charles Patrick,
registered the disputed 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 asserts rights in its ELITE SKIN CARE mark
through its holding of a trademark registration with the USPTO (Reg. No. 2,821,236 issued
Complainant argues that Respondent’s <eliteskincare.org> domain name is identical to Complainant’s
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interest in the disputed domain name. Complainant must first make a prima facie case in support of its allegations, then the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). The Panel finds that based on the arguments made in the Complaint, Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)); see also 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.”). Nevertheless, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name.
The WHOIS information of the disputed domain name lists the
registrant as “Charles Patrick.” There is
no evidence in the record that Respondent is commonly known by the disputed
domain name. Thus, the Panel finds that
Respondent lacks rights and legitimate interests in the disputed domain name
pursuant to Policy ¶ 4(c)(ii). See
M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006)
(finding that the respondent was not commonly known by the
<cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the
WHOIS information and other evidence in the record); see also
domain name was registered on
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent’s disputed domain name resolves to a website the
sells skin care products that compete with Complainant. Complainant argues that Internet users
seeking to purchase products from Complainant may, due to the identical
disputed domain name, inadvertently purchase them from Respondent’s website
instead. The Panel finds that this
constitutes a disruption of Complainant’s business and is evidence of bad faith
pursuant to Policy ¶ 4(b)(iii). See
Surface Prot. Indus., Inc. v. Webposters,
D2000-1613 (WIPO Feb. 5, 2001) (given the competitive relationship between the
complainant and the respondent, the respondent likely registered the contested
domain name with the intent to disrupt the complainant's business and create
user confusion); see also DatingDirect.com Ltd. v. Aston, FA
593977 (Nat. Arb. Forum
Respondent is using the identical domain name to
intentionally attract Internet users seeking Complainant’s products and divert
them to Respondent’s website which sells competing skin care products. Complainant alleges that Respondent uses the
identical disputed domain name to profit by misleading Internet users as to the
source, sponsorship and affiliation of the <eliteskincare.org>
domain name. The Panel finds that
Respondent’s use of the identical disputed domain name to intentionally profit
from Internet users’ confusion is evidence of bad faith pursuant to Policy ¶
4(b)(iv). See Computerized Sec. Sys., Inc. v.
Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (the respondent’s use of the
<saflock.com> domain name to offer goods competing with the complainant’s
illustrates the respondent’s bad faith registration and use of the domain name pursuant
to Policy ¶ 4(b)(iv)); see also
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 <eliteskincare.org> domain name be TRANSFERRED from Respondent to Complainant.
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