Constellation Brands, Inc. and its wholly owned subsidiary Constellation Brands U.S. Operations, Inc. v. shilei c/o shilei
Claim Number: FA1605001675231
Complainant is Constellation Brands, Inc. and its wholly owned subsidiary Constellation Brands U.S. Operations, Inc. (“Complainant”), represented by John M. Rannells of Baker and Rannells PA, New Jersey, USA. Respondent is shilei c/o shilei (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <closduboisweeps.com>, registered with 22net, Inc.
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 Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 16, 2016; the Forum received payment on May 16, 2016. The Complaint was received in both Chinese and English.
On May 16, 2016, 22net, Inc. confirmed by e-mail to the Forum that the <closduboisweeps.com> domain name is registered with 22net, Inc. and that Respondent is the current registrant of the name. 22net, Inc. has verified that Respondent is bound by the 22net, 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 May 23, 2016, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of June 13, 2016 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@closduboisweeps.com. Also on May 23, 2016, the Chinese language 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 Forum transmitted to the parties a Notification of Respondent Default.
On June 21, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
Complainant uses the CLOS DU BOIS mark in connection with its business of producing and selling wine.
Complainant holds a registration for the CLOS DU BOIS trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) (Registry No. 1,265,231, registered January 24, 1984, since renewed).
Respondent registered the domain name <closduboisweeps.com> on or about March 17, 2016.
The domain name is confusingly similar to Complainant’s CLOS DU BOIS mark.
Respondent is not affiliated with Complainant in any way, and Complainant has not licensed or otherwise authorized Respondent to use the CLOS DU BOIS mark in a domain name.
Respondent has not been commonly known by the domain name.
Respondent is neither making a bona fide offering of goods or services by means of nor a legitimate noncommercial or fair use of the domain name.
The domain name resolves to a parked website displaying pay-per-click hyperlinks to the websites of wine producers operating in competition with the business of Complainant.
Respondent has no rights to or legitimate interests in the domain name.
Respondent has established a pattern of domain name misuse as evidenced by multiple prior UDRP decisions ordering the transfer of its domain names to trademark owners.
Respondent has attempted to attract Internet users to its site for commercial gain by creating confusion among them as to the possibility of Complainant’s sponsorship of or affiliation with the domain name and the resolving website.
Respondent must have known of Complainant and its rights in the CLOS DU BOIS mark when it registered the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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 will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP 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.”
Complainant has rights in the CLOS DU BOIS trademark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here China). See, for example, Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that a mark be registered in the country in which a respondent operates, it being sufficient that a UDRP complainant can demonstrate rights in its mark in some jurisdiction). See also Advance Auto Parts, Inc. d/b/a Advance Auto Innovations, LLC v. Privacy Ltd. Disclosed Agent for YOLAPT / Domain Admin, FA 1625582 (Forum July 23, 2015) (finding that a UDRP complainant’s USPTO mark registration was a sufficient demonstration of its rights in the mark under Policy ¶ 4(a)(i), notwithstanding that a respondent resided in the Isle of Man).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <closduboisweeps.com> domain name is confusingly similar to Complainant’s CLOS DU BOIS trademark. The domain name contains the mark in its entirety, save only for elimination of the spaces between its terms, the addition of the descriptive term “weeps” and the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Novell, Inc. v. Taeho Kim, FA 167964 (Forum Oct. 24, 2003) (finding the <novellsolutions.com> domain name confusingly similar to the NOVELL mark).
See also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Forum Apr. 30, 2007) (finding that the elimination of spaces between the terms of the mark of another and the addition to it of a gTLD do not establish distinctiveness from a UDRP complainant’s mark under Policy ¶ 4(a)(i)).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in a disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny,
that Respondent has not been commonly known by the <closduboisweeps.com> domain name, that Respondent is not affiliated with Complainant in any way, and that Complainant has not licensed or otherwise authorized Respondent to use the CLOS DU BOIS mark. Moreover, the WHOIS information for the domain name identifies the registrant only as “shilei,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by disputed domain names where the relevant WHOIS information and other evidence in the record, gave no indication that that respondent was commonly known by the domain names, and where a UDRP complainant had not authorized that respondent to register any domain name containing its mark).
We next observe that Complainant contends, without objection from Respondent, that the <closduboisweeps.com> domain name resolves to a parked website displaying pay-per-click hyperlinks to the websites of wine producers operating in competition with the business of Complainant. This employment of the domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015):
Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.
Therefore, the Panel finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
It is plain from the record that Respondent has been a party respondent in at least ten (10) prior UDRP proceedings in which domain names subject to its control were transferred to various UDRP complainants upon findings of its bad faith in the registration and use of the domain names at issue in those cases. Under Policy ¶ 4(b)(ii), this pattern of domain name abuse stands as evidence of Respondent’s bad faith in registering and using the domain name here in question. See Fandango, LLC v. 21562719 Ont Ltd, FA1209001464081 (Forum Nov. 2, 2012), finding under Policy ¶ 4(b)(ii) that:
Respondent’s past conduct and UDRP history establishes a pattern of registered domain names in bad faith under Policy ¶ 4(b)(ii).
The evidence also reveals that Respondent uses the <closduboisweeps.com> domain name, which is confusingly similar to Complainant’s CLOS DU BOIS trademark, to attempt to profit commercially from confusion thus caused among Internet users as to the possibility of Complainant’s affiliation with the domain name and its resolving website. Under Policy ¶ 4(b)(iv), this too demonstrates that Respondent registered and uses the domain name in bad faith. See Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (finding that a respondent’s use of a contested domain name to display links to the websites of a UDRP complainant’s competitors showed bad faith registration and use of the domain under Policy ¶ 4(b)(iv)).
Finally, under this head of the Policy, we are persuaded that Respondent knew of Complainant and its rights in the CLOS DU BOIS mark when it registered the <closduboisweeps.com> domain name. This is additional proof of Respondent’s bad faith in registering the domain name. See Univision Comm. Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting a respondent's contention that it did not register a disputed domain name in bad faith where a panel found that that respondent knew of a UDRP complainant's rights in the UNIVISION mark when registering the domain name).
The Panel thus finds that Complainant has met its duty of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <closduboisweeps.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: June 22, 2016
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page