Artistry Concepts, LLC v. Good Look Ink
Claim Number: FA1105001390830
Complainant is Artistry Concepts, LLC. (“Complainant”), represented by Mark D. Schneider of Gifford, Krass, Sprinkle, Anderson & Citkowski, P.C., Michigan, USA. Respondent is Good Look Ink (“Respondent”), Minnesota, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <artistryconcepts.com> and <artistryconcepts.net>, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 26, 2011; the National Arbitration Forum received payment on May 31, 2011.
On May 27, 2011, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <artistryconcepts.com> and <artistryconcepts.net> domain names are registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the names. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, 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 June 2, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 22, 2011 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@artistryconcepts.com, postmaster@artistryconcepts.net. Also on June 2, 2011, 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 June 24, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <artistryconcepts.com> and <artistryconcepts.net> domain names are identical to Complainant’s ARTISTRY CONCEPTS mark.
2. Respondent does not have any rights or legitimate interests in the <artistryconcepts.com> and <artistryconcepts.net> domain names.
3. Respondent registered and used the <artistryconcepts.com> and <artistryconcepts.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding but submitted a copy of a letter Respondent sent to Complainant explaining registration of the domain names at issue and offering to sell them to Complainant. The Panel does not consider this letter a Response under the Policy and is treating this as a default case.
Complainant, Artistry Concepts, LLC, offers cosmetic tattooing services that create an illusion of three-dimensional art, resulting in a visually realistic texture of hair. Complainant owns a trademark registration for the ARTISTRY CONCEPTS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,856,703 filed March 1, 2010 and issued October 5, 2010). Complainant also has common law rights in the ARTISTRY CONCEPTS mark, dating back to October 15, 2007.
Respondent, Good Look Ink, registered the <artistryconcepts.com> and <artistryconcepts.net> domain names on February 4, 2010. The disputed domain names resolved to a listing of pay-per-click links for cosmetic tattooing services, similar to those offered by Complainant.
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 owns a trademark registration for the ARTISTRY CONCEPTS mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,856,703 filed March 1, 2010 and issued October 5, 2010). The Panel finds that a USPTO trademark conclusively establishes Complainant’s rights in the ARTISTRY CONCEPTS dating back to the filing date of March 1, 2010. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Complainant also alleges that it has common law rights in the ARTISTRY CONCEPTS mark dating back to October 15, 2007 due to its continuous use of the mark and the subsequent acquisition of secondary meaning in the mark. Complainant argues that it has used the ARTISTRY CONCEPTS mark in connection with its cosmetic tattooing services since October 15, 2007 when it incorporated in the State of Florida. Complainant contends that, also in 2007, it posted a website resolving from its <artistryconceptsllc.com> domain name to advertise its services to the public. Complainant asserts that it has continuously maintained that domain name since. In 2009, Complainant alleges that it launched a website at the <artistryconceptshairreplication.com> domain name, and in 2010, it registered the <artistryconceptsinfo.com> domain name and created an accompanying website. Complainant contends that as a result of its quality services and extensive promotion, the ARTISTRY CONCEPTS mark has become known and recognized by the public in connection with its cosmetic tattooing services. As a result of Complainant’s use of the mark since 2007 and its wide recognition, the Panel holds that Complainant has proven common law rights in the ARTISTRY CONCEPTS mark dating back to October 15, 2007. See Tuxedos By Rose v. Nunez, FA 95248 (Nat. Arb. Forum Aug. 17, 2000) (finding common law rights in a mark where its use was continuous and ongoing, and secondary meaning was established); see also Kahn Dev. Co. v. RealtyPROshop.com, FA 568350 (Nat. Arb. Forum June 23, 2006) (holding that the complainant’s VILLAGE AT SANDHILL mark acquired secondary meaning among local consumers sufficient to establish common law rights where the complainant had been continuously and extensively promoting a real estate development under the mark for several years).
Complainant argues that Respondent’s <artistryconcepts.com> and <artistryconcepts.net> domain names are identical to Complainant’s ARTISTRY CONCEPTS mark because the disputed domain names only differ from Complainant’s mark in the inclusion of the generic top-level domains (“gTLD”) “.com” or “.net” and the deletion of the space between the terms. The Panel finds that neither the deletion of the space nor the addition of a gTLD is relevant to a Policy ¶ 4(a)(i) analysis and does not prevent the disputed domain name from being identical to Complainant’s mark. See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i); see also Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”). The Panel therefore concludes that Respondent’s <artistryconcepts.com> and <artistryconcepts.net> domain names are identical to Complainant’s ARTISTRY CONCEPTS mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent lacks rights and legitimate interests in the disputed domain names, and the evidence put forth by Complainant to support this assertion establishes the prima facie case against Respondent required by Policy ¶ 4(a)(ii). Respondent now bears the burden of proving the existence of its rights and legitimate interests, but its failure to respond allows the Panel to conclude that Respondent has not met this burden and lacks rights and legitimate interests in the disputed domain name. See 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); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise). In order to make a full determination on Respondent’s rights and legitimate interests, however, the Panel elects to consider the evidence presented in light of the Policy ¶ 4(c) factors.
Complainant argues that Respondent is not commonly known by the <artistryconcepts.com> and <artistryconcepts.net> domain names. Complainant asserts that it has not authorized Respondent to use the ARTISTRY CONCEPTS mark and that the WHOIS information for the disputed domain names identifies the registrant as “Good Look Inc.,” which does not show any connection between Respondent and the disputed domain names. The Panel thus concludes that Respondent is not commonly known by the disputed domain names and accordingly lacks rights and legitimate interests in the disputed domain names 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); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant contends that Respondent’s <artistryconcepts.com> and <artistryconcepts.net> domain names host click-through sites that redirect visitors to websites that compete with Complainant by also offering cosmetic tattooing services. The Panel finds that Respondent’s maintenance of a pay-per-click link website at the disputed domain names is not consistent with a bona fide offering of goods or services according to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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 also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant asserts that Respondent’s websites resolving from the <artistryconcepts.com> and <artistryconcepts.net> domain names promote competing cosmetic tattooing services via pay-per-click links. As these links divert consumers away from Complainant to competitors, Complainant alleges that Respondent’s use of the disputed domain names disrupts Complainant’s business. The Panel agrees and holds that Respondent’s use of the disputed domain names represents bad faith registration and use according to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Complainant argues that Respondent’s use of Complainant’s exact mark as the <artristyconcepts.com> and <artistryconcepts.net> domain names shows Respondent’s intent to attract consumers seeking Complainant and create a likelihood of confusion concerning the affiliation or sponsorship of Respondent’s websites. Respondent likely profits from this attraction and confusion because the links advertised on the resolving websites are presumably pay-per-click links which generate profit for Respondent each time they are clicked. The Panel finds Respondent’s attempt to attract Complainant’s customers for Respondent’s own commercial gain is in violation of Policy ¶ 4(b)(iv) and shows bad faith registration and use. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); see also Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites).
The Panel finds 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 <artistryconcepts.com> and <artistryconcepts.net> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: June 25, 2011
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