Guess? IP Holder L.P. and Guess?, Inc. v. Guess, Lorna / Where's One, Inc.
Claim Number: FA1806001792031
Complainant is Guess? IP Holder L.P. and Guess?, Inc. (“Complainant”), represented by Gary J. Nelson of Lewis Roca Rothgerber Christie LLP, California, USA. Respondent is Guess, Lorna / Where's One, Inc. (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <two-guess.com>, registered with Network Solutions, LLC.
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.
Complainant submitted a Complaint to the Forum electronically on June 15, 2018; the Forum received payment on June 15, 2018.
On June 18, 2018, Network Solutions, LLC confirmed by e-mail to the Forum that the <two-guess.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, LLC 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 27, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 17, 2018 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@two-guess.com. Also on June 27, 2018, 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 July 18, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain name be transferred from Respondent to Complainant.
Preliminary Issue: Multiple Complainants
In the instant proceedings, there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. In Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark. But see AmeriSource Corp. v. Park, FA 99134 (Forum Nov. 5, 2001) (“This Panel finds it difficult to hold that a domain name that may belong to AmerisourceBergen Corporation (i.e., the subject Domain Names) should belong to AmeriSource Corporation because they are affiliated companies.”).
There is a sufficient nexus or link between the Complainants, which allows the Panel to treat them all as a single entity in this proceeding. Throughout this decision, the Complainants will be collectively referred to as “Complainant.”
A. Complainant
Complainants, Guess? IP Holder L.P. and Guess?, Inc. (collectively, "Complainants" or "Guess?"), own the world-famous GUESS brand which it has used for over 30 years in connection with their highly successful lines of men's and women's apparel and related goods (including women's handbags and shoes).
Respondent registered the domain name two-guess.com which includes Complainants' GUESS trademark and the generic/descriptive term "two." This domain name is used to unlawfully misdirect consumers looking for Complainants' goods and Complainants' website to a commercial parking website which hosts pay-per-click advertisements. Respondent is clearly engaged in cybersquatting and the subject domain name should be transferred to Complainants.
Complainants' Company
Guess? started in 1981 as a small California jeans company. Notwithstanding its humble beginnings, Guess? has developed into a global lifestyle brand. While jeans remain the foundation of the company's history and success, Guess? designs, markets, and distributes its full collections of women's and men's apparel throughout the United States, Canada, and worldwide. Background information about Guess? is available at guess.com. The company has successfully granted licenses for the manufacture and distribution of many of its product categories, including kids & baby apparel, watches, footwear, belts, fragrance, jewelry, swimwear, handbags, small leather goods, eyewear, and leather apparel. Guess? has licensees and distributors in the United States, Europe, South America, Asia, Africa, and the Middle East.
In the early 1980's, Guess? quickly infiltrated popular culture and became an icon of the generation. ·Guess? created groundbreaking advertising campaigns featuring sexy, sultry models previously unknown in the industry, and turned them into superstars overnight. Models such as Claudia. Schiffer, Carre Otis, Eva Herzigova, Laetitia Casta, Carla Bruni, and Naomi Campbell launched their careers in the original Guess? campaigns.
With striking images and fresh new products, Guess? gained momentum and nationwide recognition. In the 1980's, the Guess? product line expanded beyond men's and women's jeans to include baby apparel, watches, footwear, eyewear, and parfum. The 1990's saw rapid international expansion, bringing Guess? to Europe, Asia, South America, Africa, Australia, and the Middle East.
In the mid-1990's, Guess? became a public company and launched its first website at the domain name guess.com. Guess? now operates websites at the domain names guess.com, gbyguess.com, marciano.com and guess.ca. In 1995, Complainants expanded their retailing business by launching an e-commerce website at guess.com. The e-commerce website displays photographs of Guess?'s famous models and operates as a virtual storefront that sells both Guess?'s products and promotes their brands. The website also provides fashion information and a mechanism for customer feedback while promoting customer loyalty and enhancing Guess?'s identity through interactive content.
Today, Guess? is a two billion dollar multinational retailer. Guess? sells clothing and accessories to enhance the casual lifestyle of people with a flair for individualism. In 2012, Guess? celebrated 30 years in the fashion industry.
Complainants' Rights in the GUESS Marks
As a result of more than 30 years of use, Complainants have created in their GUESS trademark one of the most famous and distinctive marks in retailing. Guess? owns and uses a multitude of GUESS trademarks and service marks (collectively, the "GUESS Mark"). The GUESS Mark has acquired a valuable goodwill and reputation, and is widely recognized by the consuming public as a designation of source of the goods and services of Guess?, not only in the United States but throughout the world. Complainants, along with their distributors and licensees, now operate over 1,300 stores located in premier retailing locations in major markets worldwide. Additionally, billions of dollars of sales have been made in connection with the GUESS Mark over the past 30 years.
In addition to their exceptionally strong common law trademark rights, Guess? owns numerous Trademark Registrations for their GUESS Mark throughout the world.
Relationship Between the Complainants
Guess? IP Holder L.P. is a Delaware limited partnership that is effectively wholly owned by Guess?, Inc.
i) Complainants' Rights in the Domain Name
Guess?, Inc. originally was the owner of the trademark registrations referenced in the exhibit to the Complaint. They were assigned from Guess?, Inc. to Guess? IP Holder L.P. Accordingly, both Complainants have a sufficient trademark interest and ownership in the domain name.
The Subject Domain Name Is Confusingly Similar To Complainants' GUESS Mark
To support a finding that a subject domain name is identical or confusingly similar to a complainant's mark, all that is required is:
that the domain name misappropriate sufficient textual components from the mark such that an ordinary Internet user who is familiar with the goods or services distributed under the mark would upon seeing the domain name likely think that owing to the visual and/or phonetic similarity between the mark and the domain name that an affiliation exists between the site identified by that domain name and the owner or licensed user of the mark.
Awesome Kids LLC v. Selavy Comm., D2001-0210 (WIPO Apr. 16, 2001); see also Jews for Jesus v. Brodsky, 993 F.Supp. 282, 296 (D.N.J.), aff'd, 159 F.3d 1351 (3d Cir. 1998) (holding JEWS FOR JESUS and jewsforjesus.org confusingly similar).
The subject domain name two-guess.com is confusingly similar to Complainants' GUESS Mark. The domain name features Complainants' entire GUESS Mark as the dominant portion of the domain name, and merely adds the generic/descriptive term "two" to Complainants' GUESS Mark. The addition of this ordinary descriptive numerical term does nothing to distinguish the domain name from Complainants' mark pursuant to 4(a)(i) of the Policy. Parfums Christian Dior v. 1 Netpower, Inc., 02000- 0022 (WIPO Mar. 3, 2000) (finding that four domain names that added the descriptive words "fashion" or "cosmetics" after the trademark were confusingly similar to the trademark); The Neiman Marcus Group, Inc. et al. v. Rosanna Silverio, FA 246433 (Forum Mar. 24, 2009) (finding lastcallsale.com and lastcallsale.net confusingly similar to complainant's LAST CALL mark pursuant to Policy 4(a)(i)). Chan Luu Inc. v. big trade, FA 1464057 (Forum Nov. 8, 2012) (finding the domain name chanluu-shop.com confusingly similar to the CHAN LUU Mark under Policy ¶4(a)(i)).
Likewise, the addition of a hyphen, in the subject domain names does not impact the analysis of confusing similarity. Chan Luu Inc. v. big trade, FA 1464057 (Forum Nov. 8, 2012) (finding that despite the addition of a hyphen between "chanluu" and "shop" in chanluu-shop.com, the domain name was confusingly similar to the CHAN LUU Mark under Policy 4(a)(i)); See U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Forum Apr. 9, 2007) (the panel held that spaces, punctuation, and gTLDs do not impact a Policy ¶4(a)(i) determination).
Further, the generic top-level domain name ".com" in the subject domain name is irrelevant to the confusingly similar analysis. See Dermalogica, Inc. and The International Dermal Institute, Inc. v. Andrew Porter and Zen Day Spa, FA 1155710 (Forum Apr. 14, 2008). Thus, the addition of ".com," is insufficient to avoid a finding of confusing similarity between the subject domain name and the GUESS Mark.
Accordingly, both applicable case law and prior administrative proceedings support a finding that the subject domain name is confusingly similar to Complainants' trademarks.
Respondent Has No Rights Or Legitimate Interest In The Subject Domain Name
Respondent has no rights or legitimate interest in the subject domain name. Under the Policy, once the complainant asserts a prima facie case against the respondent, the respondent bears the burden of proving its rights or legitimate interests in the subject domain name pursuant to 4(a)(ii) of the Policy. See G.D. Searle & Co. Martin Mktg., FA 118277 (Forum Oct. 1, 2002); Do The Hustle, LLC v. Tropic Web, 02000-0624 (WIPO Aug. 21, 2000).
Complainants have not licensed Respondent to use their GUESS Mark, nor does Respondent have any legal relationship with Complainants that would entitle Respondent to use Complainants' mark. Respondent has no legitimate reason for using the GUESS Mark as the dominant part of the subject domain name.
i) Respondent Is Not Making A Bona Fide Offering Of Goods And Services At The Sub ject Domain Name
The Policy details several circumstances which, if proven, would support a finding that Respondent has a legitimate interest in the subject domain name. For instance, Respondent could have rights under ¶4(c)(i) of the Policy if "before any notice to respondent of the dispute," Respondent uses or prepares to use "the domain name in connection with a bona fide offering of goods or services."
In this case, however, Respondent's infringing use of the subject domain name cannot constitute a bona fide offering of goods and services under the Policy. A screen capture showing Respondent's use of the subject domain name to host a parking page populated by pay-per-click opportunities for clothing, apparel and accessories that compete directly with complainants (e.g., retail stores featuring clothing and clothing accessories) is attached to the Complaint.
It is well settled that the use of a domain name to host a parking page populated by pay-per-click advertisements/opportunities does not constitute a bona fide offering of goods or services. Hard Rock Cafe International (USA), Inc. v. Ryhan Estate Vineyards, FA 35573 (Forum Jan. 14, 2009) (use of a confusingly similar domain name to resolve to a website displaying third-party links to unrelated websites is not a "a bona fide offering of goods and services"); see also Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Forum Sep. 8, 2000) (finding that the respondent's website, which is blank but for links to other websites, is not a legitimate use of the domain names).
Accordingly, Respondent is not making a bona fide offering of goods or services at the subject domain name and therefore has no legitimate interest in the domain name under the circumstances described in ¶(4)(c)(i) of the Policy.
ii) Respondent Is Not Commonly Known By The Subject Domain Name
A respondent's claim of rights or legitimate interests may also be supported by 4(c)(ii) of the Policy when the party has "been commonly known by the domain name," even if no trademark or service mark rights .have been acquired. In this case, Respondent is not commonly known by the subject domain name. Respondent's name, as listed in the whois information for the subject domain name, is "Guess, Lorna" and "Where's One, Inc.," not "TWO-GUESS.COM."
Further, Complainants have not given Respondent permission to use their GUESS Mark. Respondent's unauthorized use of Complainants' registered service mark and trademarks supports a lack of rights and legitimate interests in the subject domain name. See Solstice Marketing Corp. v. Marc Salkovitz d/b/a Image Media, LLC, FA 040087 (Forum Aug. 31, 2007) (respondent was not commonly known by the disputed domain name because, in part, respondent lacked authorization to use complainant's registered service mark); see also American Girl, LLV v. George Rau, FA 308206 (Forum Apr. 2, 2010) (respondent was not commonly known by the disputed domain name when respondent was "not licensed or otherwise authorized to use" complainant's mark).
Accordingly, Respondent cannot defend under 4(c)(ii) of the Policy by claiming that it is known by the subject domain name.
iii) Respondent Is Not Making Legitimate Noncommercial Or Fair Use Of The Subject Domain Name
Another circumstance that would support a respondent's claim of rights or legitimate interest is detailed in ¶4(c)(iii) of the Policy, which states: you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
With respect to these circumstances, Respondent is making a plainly commercial use of the contested domain name that is confusingly similar to Complainants' GUESS Mark. The domain name is being used to host commercial advertisements and revenue-generating click-through links, including links clothing and clothing accessories that directly compete with Complainant. Accordingly, the circumstances described in Policy ¶4(c)(iii) are not present.
Lastly, the unlawful registration and use of a domain name reflecting another's trademark is not a protected use under the Policy. Viacom International, Inc. et al. v. TVdot.net, Inc., 0200-1253 (WIPO Jan. 16, 2001) ("[The] illegal use of another's trademark cannot be considered a bona fide use"). In view of Complainants' wellknown GUESS Mark, this commercial use by Respondent clearly violates Complainants' rights under Section 43(a) of the Lanham Act.
Accordingly, under the laws of the United States and guiding Policy decisions, Respondent cannot show any legitimate interest in the contested domain name.
Respondent Has Registered And Is Using The Sub ject Domain Name In Bad Faith
The Policy expressly details specific circumstances which, "if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith." (Policy, 4(b)). Any one of these express circumstances is sufficient to establish bad faith. A first circumstance applicable here is detailed in ¶4(b)(iv) of the Policy, which states that by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
It is well settled that the use of a domain name that is identical or confusingly similar to a complainant's mark to host a parking page is evidence of bad faith registration and use. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy 4(b)(iv)); see also Constellation Wines U.S., Inc. v. Tex. Int'/ Prop. Assocs., FA 948436 (Forum May 16, 2007) (concluding that Internet users would likely be confused as to the source or sponsorship of the <blackstonewine.com> domain name with the complainant because the respondent was redirecting Internet users to a website with links unrelated to the complainant and likely receiving click through fees in the process).
Here, Respondent is using the subject domain name, which is confusingly similar to Complainants' famous GUESS Mark, to display click-through opportunities to third-party websites that compete directly with Complainant for retail clothing sales. Just as in Williams-Sonoma, Constellation Wines, and countless other decisions, Respondent's use clearly falls within 4(b)(iv) and thus satisfies the bad faith prong of the Policy.
Finally, it is well settled that the registration of a confusingly similar domain name that is obviously connected with a particular trademark owner by someone with no connection with the trademark owner supports a finding of bad faith under the Policy. America Online, Inc. v. Shenzhen JZT Computer Software Co., Ltd., 02000-0809 (WIPO Sep. 6, 2000); Deutsche Bank AG v. Diego-Arluro Bruckner, 02000-0277 (WIPO May 30, 2000) ("The domain name is so obviously connected with the complainant and its services that its very use by someone with no connection with the complainant suggests opportunistic bad faith."); FAQ Schwarz v. John Zuccarini, FA95828 (Forum Dec. 1, 2000); Household International, Inc. v. Cyntom Enterprises, FA95784 (Forum Nov. 7, 2000) (inferring that the respondent registered a well-known business name with hopes of attracting the complainant's customers); Woolworths PLC v. David Anderson, 02000-1113 (WIPO Oct. 10, 2000). In the present case, Respondent registered the domain name, which is a clear infringement of Complainants' GUESS Mark. Because the GUESS Mark is so obviously connected with Complainants, and because the domain name so clearly references Complainants and the sale of their goods Guess related outlet, the registration and use of the domain name by Respondent, who has no connection with Complainants evidences bad faith under the Policy. Accordingly, a finding of bad faith is also supported on these grounds. As Complainants have satisfied all three elements of the Policy, they request the Panel grant the requested remedy.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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 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(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 claims rights in the GUESS mark based upon the mark’s registration with the United States Patent and Trademark Office (“USPTO”). Registrations of a mark with a governmental authority, such as the USPTO, is sufficient to demonstrate rights in a mark under Policy ¶4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant’s registration of the GUESS mark with the USPTO is sufficient to establish rights in the mark under Policy ¶4(a)(i).
Complainant claims Respondent’s <two-guess.com> domain name is confusingly similar to Complainant’s GUESS mark because it incorporates the mark in its entirety and is differentiated only by the addition of the generic and/or descriptive term “two,” a hyphen, and the “.com” gTLD. Additions to a complainant’s mark such as a generic and/or descriptive term and a hyphen do not prevent a finding of confusing similarity between a disputed domain name and mark under Policy ¶4(a)(i). A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark). The <two-guess.com> domain name is confusingly similar to the GUESS mark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
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 Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant claims Respondent has no rights or legitimate interests in the <two-guess.com> domain name. Respondent is not authorized or licensed to use Complainant’s GUESS mark. Respondent is not commonly known by the disputed domain name. Absent information in the record to the contrary (and there is none in this case), the WHOIS information and common sense allow the Panel to decide Respondent is not commonly known by the disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum Jul. 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶4(c)(ii).”). The WHOIS information of record for the <two-guess.com> domain name lists the registrant as “Guess, Lorna / Where's One, Inc.” There is no obvious relationship between the disputed domain name and Respondent’s name. No information on the record indicates Respondent is authorized or licensed to use the GUESS mark. Respondent has not been commonly known by the <two-guess.com> domain name under Policy ¶4(c)(ii).
Complainant claims Respondent fails to use the <two-guess.com> domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶4(c)(i) and (iii). Respondent uses the disputed domain name to host a dynamic parking page populated by competing, pay-per-click advertisements. Using a domain name to host competing, pay-per-click advertisements is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶4(c)(i) and (iii). See Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶4(b)(iv)). Respondent failed to use the <two-guess.com> domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶4(c)(i) & (iii).
Respondent registered the disputed domain name using a privacy WHOIS service. This means Respondent has done nothing to publicly associate itself with the disputed domain name. Respondent could not have acquired any rights to the disputed domain name simply by registering it.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent registered and uses the <two-guess.com> domain name in bad faith. Respondent uses the disputed domain name to attract, for commercial gain, users to a website which resolves to a dynamic parking page populated by competing, pay-per-click advertisements. Using a domain name to host pay-per-click advertisements redirecting users to complainant’s competitors demonstrates bad faith under Policy ¶4(b)(iv). 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.”). Respondent registered and uses the disputed domain name in bad faith under Policy ¶4(b)(iv).
Respondent registered the domain name using a WHOIS privacy service. In the commercial context, this raises the rebuttable presumption of bad faith registration and use. Respondent has done nothing to rebut this presumption. This Panel is willing to find bad faith on this ground alone.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <two-guess.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Monday, July 30, 2018
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