Alex and Ani, LLC v. yong luo / luo yong
Claim Number: FA1611001704343
Complainant is Alex and Ani, LLC (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is yong luo / luo yong (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alexandanifanshop.com>, registered with Bizcn.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 22, 2016; the Forum received payment on November 22, 2016.
On November 24, 2016, Bizcn.com, Inc. confirmed by e-mail to the Forum that the <alexandanifanshop.com> domain name is registered with Bizcn.com, Inc. and that Respondent is the current registrant of the name. Bizcn.com, Inc. has verified that Respondent is bound by the Bizcn.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 November 29, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 19, 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@alexandanifanshop.com. Also on November 29, 2016, 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 Forum transmitted to the parties a Notification of Respondent Default.
On December 21, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
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, Alex and Ani, LLC, is a Rhode Island corporation that sells and markets various fashion accessories and cosmetics in retail stores and online. In connection with this business Complainant has registered the ALEX AND ANI mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,549,848, registered Mar. 19, 2002). Respondent’s domain name <alexandanifanshop.com> is confusingly similar to the ALEX AND ANI mark as the domain name includes the entire mark and ends with the generic terms “fan” and “shop” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not been commonly known by the disputed domain name nor has Respondent been affiliated with Complainant or been given permission to use the mark. Further, Respondent’s domain name resolves to a website that is used to sell jewelry containing Complainant’s ALEX AND ANI mark without permission.
Respondent has registered and is using the disputed domain name in bad faith. Respondent is diverting internet customers from Complainant’s sites disrupting Complainant’s business. Respondent also confuses and attracts internet users for commercial gain through selling jewelry containing Complainant’s mark. Finally, Respondent had actual knowledge of Complainant’s rights at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Alex and Ani, LLC, is a Rhode Island corporation that sells and markets various fashion accessories and cosmetics in retail stores and online. Complainant has rights in the ALEX AND ANI mark through registration with the USPTO. Respondent’s domain name <alexandanifanshop.com> is confusingly similar to the ALEX AND ANI mark.
Respondent, yong luo / luo yong, registered the <alexandanifanshop.com> domain name on May 16, 2016.
Respondent has no rights or legitimate interests in the <alexandanifanshop.com> domain name. Respondent’s domain name resolves to a website that is used to sell jewelry containing Complainant’s ALEX AND ANI mark without authorization.
Respondent has registered and is using the disputed domain name 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:
(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(f), 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 (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.”).
Complainant has rights in the ALEX AND ANI mark based on registration with the USPTO. See AOL LLC v. Interrante, FA 681239 (Forum May 23, 2006) (finding that, where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i)”).
Respondent’s domain name <alexandanifanshop.com> is confusingly similar to the ALEX AND ANI mark. Respondent’s domain name includes the entire ALEX AND ANI mark and adds the terms “fan” and “shop,” and the gTLD “.com.”
Respondent has not been commonly known by the <alexandanifanshop.com> domain name under Policy ¶ 4(c)(ii). The WHOIS information for the domain name lists Respondent as, “yong luo,” of the organization, “luo yong.” Complainant has not given Respondent permission to use the ALEX AND ANI mark. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Respondent uses the <alexandanifanshop.com> domain name to sell jewelry items which are labeled with the ALEX AND ANI mark without authorization. Therefore, Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or ¶ 4(c)(iii). See Wolverine World Wide, Inc. v. Fergus Knox, FA 1627751 (Forum August 19, 2015) (finding no bona fide offering of goods or legitimate noncommercial or fair use existed where Respondent used the resolving website to sell products branded with Complainant’s MERRELL mark, and were either counterfeit products or legitimate products of Complainant being resold without authorization); see also Caterpillar Inc. v. Huth, FA 169056 (Forum Sept. 2, 2003) (“Respondent lacks rights in the disputed domain names because Respondent competes with Complainant by selling Complainant's used parts without a license from Complainant to do so.”).
Respondent diverts internet customers from Complainant’s sites disrupting Complainant’s business. Therefore, Respondent registered and uses the
<alexandanifanshop.com> domain name in bad faith under Policy ¶ 4(b)(iii).
See G.D. Searle & Co. v. Celebrex Cox-2 Vioxx.com, FA 124508 (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).”).
Respondent confuses and attracts internet users for commercial gain by selling products using Complainant’s mark. Therefore, Respondent registered and uses the <alexandanifanshop.com> domain name in bad faith under Policy ¶ 4(b)(iv).
Respondent registered the <alexandanifanshop.com> domain name with actual knowledge of Complainant's rights in the ALEX AND ANI mark. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (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).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alexandanifanshop.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: January 2, 2017
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