Skechers
Claim Number: FA1007001338073
Complainant is Skechers
U.S.A., Inc. and Skechers
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <skechers4sell.com>, registered with Godaddy.com, 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 July 29, 2010.
On August 2, 2010, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <skechers4sell.com> domain name is registered with Godaddy.com, Inc. and that 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 August 5, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 25, 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@skechers4sell.com by e-mail. Also on August 5, 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.
On September 7, 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" 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 <skechers4sell.com> domain name is confusingly similar to Complainant’s SKECHERS mark.
2. Respondent does not have any rights or legitimate interests in the <skechers4sell.com> domain name.
3. Respondent registered and used the <skechers4sell.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Skechers
Respondent, Ruan Xikao, registered the <skechers4sell.com> domain name on July 5, 2010. The disputed domain name resolves to a website that is nearly identical to Complainant’s official website, resolving from the <skechers.com> domain name, that purports to be a secure buying website that Respondent may use to acquire Internet users’ private information and credit information.
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 alleges that it has established rights in its
SKECHERS mark under Policy ¶ 4(a)(i). Previous panels have held that trademark
registrations with federal trademark agencies establish rights in a mark for a
complainant under Policy ¶ 4(a)(i). See Miller Brewing
Complainant asserts that Respondent’s <skechers4sell.com> domain name is confusingly similar to Complainant’s SKECHERS mark. The disputed domain name contains Complainant’s entire SKECHERS mark with the addition of the number “4,” the generic term “sell,” and the generic top-level domain (“gTLD”) “.com.” The Panel finds that these additions fail to sufficiently distinguish the disputed domain name from Complainant’s mark. See Am. Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24, 2000) (finding that the respondent’s domain name <go2AOL.com> was confusingly similar to the complainant’s AOL mark); see also Warner Bros. Entm’t Inc. v. Sadler, FA 250236 (Nat. Arb. Forum May 19, 2004) (finding the addition of generic terms to Complainant’s HARRY POTTER mark in the respondent’s <shop4harrypotter.com> and <shopforharrypotter.com> domain names failed to alleviate the confusing similarity between the mark and the domain names); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds that Respondent’s <skechers4sell.com> domain name is confusingly similar to Complainant’s SKECHERS mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has alleged Respondent does not have rights or legitimate interests in the <skechers4sell.com> domain name. 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 name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name 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).
Complainant claims that Respondent is not commonly known by
the <skechers4sell.com> domain
name. Complainant alleges that
Respondent is not authorized to use Complainant’s SKECHERS mark. The WHOIS information identifies the
registrant of the <skechers4sell.com> domain name as “Ruan
Xikao,” which the Panel finds is not similar to the disputed domain name. Respondent has failed to respond and address
Complainant’s assertions. After
examining the record, the Panel determines that Respondent is not commonly
known by the <skechers4sell.com> domain name pursuant to 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 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).
Complainant asserts
that Respondent is using the <skechers4sell.com> domain name to
resolve to a website nearly identical to Complainant’s official website,
<skechers.com>. Complainant argues
that Respondent is attempting to use the disputed domain name to acquire
personal information and credit information from Complainant’s customers and to
sell counterfeit and competing versions of Complainant’s SKECHERS footwear
products. Complainant alleges that the
website resolving from the disputed domain name contains statements such as “Verified
by Visa” or “Verisign Secured,” but do not contain any protections
for Internet users. The Panel finds that
Respondent’s use of the <skechers4sell.com> domain name to pass
itself off as Complainant in order to acquire personal information and sell
counterfeit and competing products is not a bona
fide offering of goods or services under Policy ¶ 4(c)(i)
or a legitimate noncommercial or unfair use of the disputed domain name
pursuant to Policy ¶ 4(c)(iii). See Hewlett-Packard Co. v.
Inversiones HP Milenium
The Panel finds
Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent uses the <skechers4sell.com> domain name to operate a website selling
counterfeit or competing versions of Complainant’s footwear products. Internet users interested in Complainant’s
footwear products may purchase the counterfeit products due to Respondent’s use
of the confusingly similar disputed domain name. The Panel concludes that Respondent’s use of
the disputed domain name disrupts Complainant’s business, which constitutes bad
faith registration and use pursuant to 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 Fossil, Inc. v. NAS,
FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (transferring the
<fossilwatch.com> domain name from the respondent, a watch dealer not
otherwise authorized to sell the complainant’s goods, to the complainant).
Complainant argues
that Respondent is attempting to commercially gain from the sale of counterfeit
products and the acquisition of personal information. Complainant contends that Respondent is
purposefully using the confusingly similar domain name in order to confuse
Internet users into thinking that the website is associated with
Complainant. Internet users’ confusion
is likely enhanced by Respondent’s creation of a website that is nearly
identical to Complainant’s official website.
The Panel determines that Respondent’s use of the <skechers4sell.com>
domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See World Wrestling Fed’n Entm’t, Inc. v. Ringside Collectibles,
D2000-1306 (WIPO Jan. 24, 2001) (concluding that the respondent registered and
used the <wwfauction.com> domain name in bad faith because the name
resolved to a commercial website that the complainant’s customers were likely
to confuse with the source of the complainant’s products, especially because of
the respondent’s prominent use of the complainant’s logo on the site); see
also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat.
Arb. Forum Aug. 29, 2000) (finding bad faith where the domain
name in question is obviously connected with the complainant’s well-known
marks, thus creating a likelihood of confusion strictly for commercial gain).
Complainant contends
that Respondent is attempting to acquire Internet users’ personal information
and credit information through Respondent’s use of the <skechers4sell.com>
domain name. Complainant claims that the
resolving website purports to be a secure website, but that the security
designations, “Verified by Visa” or “Verisign Secured,” were simply added to
the website and that the website is not protected, allowing Respondent to steal
personal information and credit information.
The Panel determines that this is a phishing scheme, which is evidence
of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Wells Fargo &
Co. v.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <skechers4sell.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: September 20, 2010
National
Arbitration Forum
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page