HARVEY NICHOLS AND COMPANY LIMITED v. Domains By Proxy, LLC
Claim Number: FA1406001565872
Complainant: HARVEY NICHOLS AND COMPANY LIMITED of London, United Kingdom; Complainant Representative: Aaron B Newell of London, UK
Registrant: Karan puri / FLIRT FASHION LTD of United States of America
REGISTRIES and REGISTRARS
Registries: Steel Lake, LLC
Registrars: GoDaddy.com, LLC
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Examiner in this proceeding.
Terry F. Peppard, as Examiner
Complaint Submitted: June 22, 2014
Commencement of Proceeding: June 23, 2014
Default Date: July 8, 2014
Having reviewed the relevant communications record, the Examiner finds that the National Arbitration Forum has discharged its responsibility under URS Procedure ¶¶ 3 and 4 and under Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of its registration.
Clear and convincing evidence
URS Procedure ¶ 1.2.6. requires Complainant to make a prima facie case, by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended:
1. The registered domain name is identical or confusingly similar to
a mark for which Complainant holds a valid national or regional registration and that it is in current use;
2. Registrant has no right to or legitimate interest in the domain name;
and
3. The same domain name was registered and is being used by
Registrant in bad faith.
In its Complaint, Complainant shows that Complainant is a clothier of internat-ional reputation, and that it holds a valid registration for the HARVEY NICHOLS trademark and service mark, which is on file with the United States Patent and Trademark Office as Registry No. 3,395,104, registered March 11, 2008, and that the mark is in current use. Complainant also shows that Registrant registered the harveynichols.clothing> domain name. Registrant does not deny any of this.
Identity or Confusing Similarity
There is no dispute that the <harveynichols.clothing> domain name is substant-ively identical to Complainant’s HARVEY NICHOLS trademark and service mark, or that Complainant holds a valid registration for the mark and that it is in current use. Accordingly, we so find.
Registrant’s Rights or Interests
Complainant alleges, and Registrant does not deny, that Registrant knew of Complainant and its rights in the HARVEY NICHOLS mark when Registrant registered the <harveynichols.clothing> domain name, and that Complainant has not authorized Registrant to use its HARVEY NICHOLS mark in any way. There is nothing in the record to indicate that Registrant has been commonly known by the domain name.
Complainant also asserts, without objection from Registrant, that the disputed domain name resolves to a landing page which offers the domain name for sale, presumably for a price in excess of Registrant’s costs of acquiring it.
On these undenied facts, we have no difficulty in finding that Registrant has neither any rights to nor any legitimate interests in the contested domain name.
Registrant’s Bad Faith
Registrant does not deny the assertion of the Complaint that Registrant is using a “privacy service” in order to mask its identity, and that Registrant’s use of the “clothing” extension in association with the HARVEY NICHOLS mark in the <harveynichols.clothing> domain name makes clear Registrant’s intention to confuse Internet users as to the possibility of Complainant’s affiliation with the domain name. These considerations, without more, are sufficient to warrant a finding that Registrant has registered and uses the domain name in bad faith.
In addition, however, under the URS Procedure, essentially the same consid-erations that establish that Registrant has no rights to or legitimate interests in the <harveynichols.clothing> domain name are also pertinent to an analysis of whether the domain name has been registered and is being used in bad faith. See URS Procedure ¶ 5.7. Accordingly, a finding of bad faith in the registration and use of the domain name also follows from the discussion above of the ab-sence of any rights or legitimate interests accruing to the benefit of Registrant from the facts presented in the Complaint.
We find that the Complaint was not brought in an abuse of this proceeding and that it does not contain material falsehoods.
Upon review of its submissions, we find that Complainant has demonstrated all required elements of the URS to a standard of clear and convincing evidence. Accordingly, we Order that the <harveynichols.clothing> domain name be SUSPENDED for the duration of its registration.
Terry F. Peppard, Examiner
Dated: July 10, 2014
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