national arbitration forum

 

DECISION

 

NYX, Los Angeles Inc. v. ICS INC.

Claim Number: FA1302001485597

PARTIES

Complainant is NYX, Los Angeles Inc. (“Complainant”), represented by Patchen M. Haggerty of Dorsey & Whitney LLP, Washington, USA.  Respondent is ICS INC. (“Respondent”), Canada.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <nyxxcosmetics.com>, registered with TUCOWS, INC.

 

PANEL

The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

Houston Putnam Lowry, Chartered Arbitrator, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on February 15, 2013; the National Arbitration Forum received payment on February 18, 2013.

 

On February 19, 2013, TUCOWS, INC. confirmed by e-mail to the National Arbitration Forum that the <nyxxcosmetics.com> domain name is registered with TUCOWS, INC. and that Respondent is the current registrant of the names.  TUCOWS, INC. has verified that Respondent is bound by the TUCOWS, INC. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

 

On February 21, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 13, 2013 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@nyxxcosmetics.com.  Also on February 21, 2013, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 March 28, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

The Complaint is based on the NYX trademark, which is identified solely and exclusively with Complainant.  Complainant’s NYX mark was first used in commerce in connection with cosmetics as early as 1999, and has been used continuously since that time.  Complainant has rights in the NYX mark pursuant to Policy ¶4(a)(i) through its use of the mark in commerce and its registrations in the United States and Canada (where Respondent appears to be located), as follows:

·       Incontestable U.S. Reg. No. 3310409 for the mark [design mark image removed]  issued October 16, 2007 for “Liquid make up, compact powder, loose powder, powder blush, cream blush, eyebrow pencils, eyebrow powder, eye shadow, liquid eye liner, mascara, eye shadow pencil, eye liner pencil, gel and cream eye liner, pearl powder shadow, lipstick, lip liner pencil, jumbo lipstick pencil, body bronzer powder, body bronzer lotion, body bronzer cream, false eyelashes, nail polish, glue for false eyelashes, nail polish remover, cuticle cream, facial cleansing pads, facial mask sheets, eye cream, neck cream, shampoo, body lotion, shower gel, bath foam, massage cream” in Class 3.  The application for this mark was filed on January 8, 2007.

 

·       U.S. Reg. No. 4044027 for the mark NYX issued October 25, 2011 for “Cosmetics and make-up, liquid make up, solid powder for compacts, loose face powder, powder blush, cream blush, eyebrow pencils, eyebrow powder, eye shadow, liquid eye liner, mascara, eye shadow pencil, eye liner pencil, gel and cream eye liner, pearl powder shadow, lipstick, lip liner pencil, jumbo lipstick pencil, body bronzer powder, body bronzer lotion, body bronzer cream, false eyelashes, nail polish, glue for false eyelashes, nail polish remover, cuticle cream, facial beauty mask sheets, eye cream, neck cream, shampoo, body lotion, shower gel, bath foam, massage cream, cosmetic soap” in Class 3; “Cosmetic bags, cosmetic cases, cosmetic carrying cases all sold empty” in Class 18; “Make-up brushes” in Class 21; “Clothing, namely, t-shirts, aprons, polo shirts, pants, tank tops, long-sleeved shirts” in Class 25; and “Online retail store services featuring cosmetics, make-up, cosmetic bags, cosmetic cases, cosmetic carrying cases, make-up brush holders and make-up brushes” in Class 35.  The application for this mark was filed on September 10, 2010.

 

Complainant also owns registrations for the NYX mark in more than 35 other countries and the mark is recognized for cosmetics worldwide.  Previous panels have found that evidence of a registration with a national trademark authority is evidence of rights in a mark under Policy ¶4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶4(a)(i)).

 

FACTUAL AND LEGAL GROUNDS

 

This Complaint is based on the following factual and legal grounds: UDRP Rule 3(b)(ix). 

 

[a.]       The Disputed Domain Name is Confusingly Similar to Complainant’s NYX Trademark

 

[i.]    Under the UDRP Rules, a complainant must prove that the respondent’s domain name “is identical or confusingly similar to a trademark or service mark in which the complainant has rights.” Policy ¶4(a)(i). In this case, Respondent’s <nyxxcosmetics.com> domain name is confusingly similar to Complainant’s NYX mark in that the <nyxxcosmetics.com> domain name contains Complainant’s NYX mark in its entirety with an additional letter “x”, the generic wording “cosmetics” and the generic top-level domain (“gTLD”) “.com.”  Complainant notes that it operates its primary web site under the domain <nyxcosmetics.com> such that Respondent’s <nyxxcosmetics.com> domain name is almost identical to Complaint’s web site domain.  Here, the addition of the letter “x” can only imply that the domain name is an official NYX domain name leading to an official NYX website in the nature of a retail outlet, neither of which is true.  Previous panels have found that these variations are insufficient to differentiate a disputed domain name from a registered mark. See Fossil, Inc. v. Juan Cabral, FA1211001469662 (Nat. Arb. Forum December 18, 2012) (finding that the addition of the word “outlet” “can only imply that the domain name is an official FOSSIL domain name leading to an official FOSSIL website in the nature of a retail outlet, neither of which is true.”); see also Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several domain names incorporating the complainant’s entire EXPERIAN mark and merely adding the term “credit” were confusingly similar to the complainant’s mark); Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD is “unable to create a distinction capable of overcoming a finding of confusing similarity”). Thus, Respondent’s <nyxxcosmetics.com> domain name is confusingly similar to Complainant’s registered NYX mark under Policy ¶4(a)(i). 

 

[ii.]   Complainant’s rights in its NYX mark predate the registration of the Domain Name.  Complainant’s NYX mark was first used in commerce in connection with cosmetics as early as 1999, and has been used continuously since that time.  Complainant’s United States registrations were issued on October 16, 2007 and October 25, 2011, respectively.  Complainant’s United States Registration No. 3310409 for the mark  [design mark image removed] is now incontestable.  The Domain Name was not acquired until January 6, 2013.

 

[b.]       The Respondent Has No Rights or Legitimate Interests in the Disputed Domain Name

 

[i.]    Second, a complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii).  The NYX mark is associated exclusively with Complainant and has no independent dictionary meaning.  Therefore, Respondent had no reason to choose the domain name <nyxxcosmetics.com> except to create the impression of an association with, or to trade off of the goodwill of, Complainant.

 

[ii.]   Respondent is not commonly known by the <nyxxcosmetics.com> domain name according to Policy ¶4(c)(ii).  Respondent is not a licensee or subsidiary of Complainant.  Respondent has never been authorized to use Complainant’s NYX mark, nor has Complainant authorized or licensed Respondent to supply or distribute Complainant’s goods or services.  Previous panels have found no rights or legitimate interests where (a) respondent is not a licensee of complainant; (b) complainant’s prior rights in the mark precede respondent’s registration of the domain name; and (c) respondent is not commonly known by the domain name in question.  See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).

 

[iii.]  The term NYX is not a descriptive or geographically significant word in which Respondent might have a claim to rights of use.  As described below, Respondent’s only connection with the NYX mark has been registration and use of the disputed domain name and Complainant’s registered mark, which does not demonstrate Respondent’s rights under Paragraph 4(a)(ii) of the Policy.  See Vestel Elektronik Sanayi ve Ticaret AS v. Mehmet Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (“Merely registering [a] domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy.”).  As such, Respondent has no legitimate interest in the disputed Domain Name. 

 

[iv.]  Respondent has no rights or legitimate interests in the <nyxxcosmetics.com> domain name because it is not making 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).  Instead, Respondent has chosen to take Complainant’s NYX trademark and to use it in its domain name, merely adding the letter “x” and the generic wording “cosmetics” to the trademark, making the Domain Name almost identical to Respondent’s web site domain and thereby strengthening the confusing similarity between the domain name and the trademark.  Further, upon information and belief, Respondent is offering a competitive online retail store in the same space as Complainant and is using Complainant’s registered NYX mark on the site, as discussed in further detail below.  Such use of the NYX trademark is commercial and competitive and, as such, does not constitute fair use.  Rather, such use infringes upon Complainant’s trademark rights, as discussed in further detail below, and is not a legitimate use of the Domain Name under the Policy.  See 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.”).

 

[v.]   Respondent is clearly attempting to capitalize on using the Complainant’s Mark as its domain name, presumably to gain revenue from Internet users searching for Petitioner’s nyxcosmetics.com site.  In fact, Respondent is using the Domain Name for commercial gain to misleadingly divert consumers to its web site.  The Domain Name is confusingly similar to Complainant’s NYX trademark and almost identical to Complainant’s nyxcosmetics.com domain name, and Respondent capitalizes on that confusing similarity to re-route to its web site commercial Internet traffic likely destined for Complainant’s web site, which is improper and illegal. 

 

[c.]       The Disputed Domain Name Has Been Registered and is Being Used in Bad Faith

 

[i.]    Finally, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. Policy ¶4(b). Respondent registered the Domain Name in bad faith by intentionally attempting to attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s NYX mark as to the source, sponsorship, affiliation, or endorsement of Respondent with Complainant in an attempt to capitalize unfairly on the goodwill of Complainant’s NYX trademark.  Respondent is using the NYX mark on its web site in order to benefit commercially from Complainant’s well established goodwill.  Previous panels have found bad faith when a respondent knowingly takes advantage of a well-known mark to attract users to respondent’s own website. See AOL LLC v. iTech Ent, LLC, FA 726227 (Nat. Arb. Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶4(b)(iv)); see also  State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where the respondent registered the domain name <bigtex.net> to infringe on the complainant’s goodwill and attract Internet users to the respondent’s website).

 

[ii.] Complainant enjoys exclusive rights in the NYX trademark by virtue of its registrations for the marks and/or its long-term, widespread and prominent use of that mark.  Complainant has never consented to Respondent’s registration of the NYX trademark as part of a Domain Name, nor has Complainant ever granted any of its rights to Respondent.  In light of the fame and notoriety of Complainant’s NYX mark and Respondent’s use of Complainant’s logo on its web site, it is inconceivable that Respondent could have registered the <nyxxcosmetics.com> domain name without actual knowledge of Complainant’s rights in the mark, which constitutes evidence of bad faith under Policy ¶4(a)(iii).  See State Farm Mutual Automobile Insurance Company v. master plumbing, FA1210001466938; see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent’s contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).  Therefore, Respondent has registered and is using the Domain Name in bad faith under Policy ¶4(a)(iii).

 

[iii.] By using the Domain Name and Respondent’s NYX mark on the web site, Respondent makes prominent trademark use of the NYX trademark without authorization from Complainant.  This use creates the false impression that the links and information provided on Respondent’s website are sponsored or endorsed by Complainant. 

 

[iv.] The evidence shows that Respondent registered the Domain Name with the specific intent to cause consumer confusion and to “free ride” on the vast goodwill associated with Complainant’s trademarks.  Upon information and belief, Respondent registered the Domain Name with full knowledge that it is identical or confusingly similar to Complainant’s trademarks in order to re-route to Respondent’s web site commercial Internet traffic likely destined for Complainant’s competitive nyxcosmetics.com web site.   

 

[v.] Therefore, Respondent registered and is using the <nyxxcosmetics.com> domain name in bad faith pursuant to Policy ¶4(b)(iv).

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

(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.

 

DISCUSSION

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."

 

Paragraph 4(a) of the Policy requires Complainant to prove the following three elements to obtain an order cancelling or transferring a domain name:

 

(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.

 

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.”).

 

Identical and/or Confusingly Similar

Complainant NYX, Los Angeles Inc. claims it has used its NYX mark in commerce in connection with cosmetics as early as 1999 and continuously thereafter. Complainant is the owner of trademark registrations with the United States Patent & Trademark Office (“USPTO”) for the NYX mark (e.g., Reg. No. 3,310,409, registered October 16, 2007). Complainant also owns registrations for the NYX mark in more than 35 other countries and the mark is recognized for cosmetics worldwide. Complainant does not need to register its mark in Respondent’s country to demonstrate its rights in the mark under Policy ¶4(a)(i). See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). Complainant’s registration of the NYX mark with the USPTO is sufficient to establish its rights in the mark under Policy ¶4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶4(a)(i)).

 

Complainant claims Respondent’s <nyxxcosmetics.com> domain name is confusingly similar to Complainant’s NYX mark because the domain name contains Complainant’s NYX mark in its entirety with an additional letter “x.” The addition of the letter “x” does not sufficiently distinguish the mark from the disputed domain name under Policy ¶4(a)(i). See Amazon.com, Inc. v. Ikhizamah, D2002-1168 (WIPO Mar. 17, 2003) (holding that the <zamazon.com> domain name was confusingly similar to the complainant’s AMAZON.COM mark). Complainant also claims Respondent’s adding the descriptive word “cosmetics” to the disputed domain name does not adequately distinguish the mark from the disputed domain name. The addition of a descriptive word to a domain name does not distinguish Respondent’s disputed domain name from Complainant’s NYX mark under Policy ¶4(a)(i). See Novell, Inc. v. Taeho Kim, FA 167964 (Nat. Arb. Forum Oct. 24, 2003) (finding the <novellsolutions.com> domain name confusingly similar to the NOVELL mark despite the addition of the descriptive term “solutions” because even though “the word ‘solutions’ is descriptive when used for software, Respondent has used this word paired with Complainant's trademark NOVELL”). Complainant finally argues the gTLD “.com” should be ignored for the purposes of this analysis. The addition of a gTLD is ignored under a Policy ¶4(a)(i) analysis because to hold otherwise would eviscerate the UDRP. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (holding that attaching a gTLD  is “unable to create a distinction capable of overcoming a finding of confusing similarity”). Accordingly, Respondent’s <nyxxcosmetics.com> domain name is held to be confusingly similar to Complainant’s NYX mark pursuant to Policy ¶4(a)(i).

 

The Panel finds Policy ¶4(a)(i) satisfied.

 

Rights or Legitimate Interests

Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii).  Then the burden shifts to Respondent to show it has rights or legitimate interests.  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).

 

Complainant claims Respondent is not commonly known by the <nyxxcosmetics.com> domain name according to Policy ¶4(c)(ii). The WHOIS information lists “ICS INC.” as the registrant of the disputed domain name, which is clearly different from the disputed domain name. Complainant claims Respondent is not a licensee or subsidiary of Complainant. Complainant has not authorized or licensed Respondent to supply or distribute Complainant’s goods or services. Respondent does not deny this.  Therefore, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

Complainant claims Respondent is offering a competitive online retail store in same space as Complainant. Respondent’s domain name resolves to a website advertising competing links such as “SEPHORA OFFICIAL SITE,” “ALL NATURAL VITAMINS,” “MEANINGFUL BEAUTY,” and other links. Complainant claims Respondent is clearly attempting to capitalize on using the Complainant’s mark as its domain name, presumably to gain revenue from Internet users searching for Complainant’s <nyxxcosmetics.com> domain name. The Panel finds Respondent’s use of the domain name to list competing hyperlinks is not a bona fide offering of goods and services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).

 

The Panel finds Policy ¶4(a)(ii) satisfied.

 

Registration and Use in Bad Faith

Complainant claims Respondent registered the domain name in bad faith by intentionally attempting to attract, for commercial gain, Internet users by creating a likelihood of confusion with Complainant’s NYX mark. According to the submitted evidence, Respondent’s domain name resolves to a website advertising competing links such as “SEPHORA OFFICIAL SITE,” “ALL NATURAL VITAMINS,” “MEANINGFUL BEAUTY,” and other links. Respondent’s use of the disputed domain name to attract Internet users for its own commercial gain adequately demonstrates bad faith use and registration pursuant to Policy ¶4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).

 

Complainant argues it is inconceivable Respondent could have registered the <nyxxcosmetics.com> domain name without actual knowledge of Complainant’s rights in the mark. Complainant claims it enjoys exclusive rights in the NYX mark by virtue of its registrations for the mark and/or its long-term, widespread, and prominent use of that mark. While the issue of incontestability is immaterial in a UDRP proceeding, it certainly appears Respondent had actual knowledge of Complainant’s mark and rights based upon Respondent’s use of the disputed domain name. The Panel therefore finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).

 

The Panel finds Policy ¶4(a)(iii) satisfied.  

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.

 

Accordingly, it is Ordered the <nyxxcosmetics.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Houston Putnam Lowry, Chartered Arbitrator, Panelist

Dated: Tuesday, April 9, 2013

 

 

 

 

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