Hard Candy, LLC v. Taneka Lindsey / Baltimore City
Claim Number: FA1809001809706
Complainant is Hard Candy, LLC (“Complainant”), represented by Gabriel Groisman of 3323 NE 163rd St. Suite 508, Florida, USA. Respondent is Taneka Lindsey / Baltimore City (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hardcandy-jewelry.com>, registered with GoDaddy.com, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 28, 2018; the Forum received payment on September 28, 2018.
On September 28, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <hardcandy-jewelry.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 October 1, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 22, 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@hardcandy-jewelry.com. Also on October 1, 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 October 26, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 does not provide information on its business. Complainant states that it owns over one hundred marks that contain the words “Hard Candy” worldwide, including the HARD CANDY mark registered in the United States in 2009. The various marks cover fashion-related goods and specifically, jewelry. Also, Complainant owns and uses the domain name <hardcandy.com> in connection with its goods.
Complainant alleges that the disputed domain name is identical or confusingly similar to its mark as it incorporates the entire HARD CANDY mark and merely adds a hyphen, the descriptive term “jewelry”, and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not permitted or licensed to use Complainant’s HARD CANDY mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. The disputed domain name does not resolve to an active website, and Respondent offered to sell the disputed domain name for a price in excess of out-of-pocket costs. Specifically, on July 25, 2018, Complainant offered to buy the domain name from Respondent, and Respondent agreed to sell it to Complainant for $80.00. Later, on July 28, 2018, Respondent informed Complainant that she would not sell it for less than $200.00, which is certainly in excess of Respondent’s out-of-pocket costs directly related to the domain name. Although Complainant agreed to purchase Respondent’s domain name for $200.00 to avoid a costlier dispute, Respondent again refused to sell it at that price. Instead, Respondent informed Complainant that she put the domain name on <godaddy.com’s> auction site, in an attempt to get an even higher price for the domain name.
Further, says Complainant, Respondent has registered and uses the disputed domain name in bad faith. Respondent attempts to sell the disputed domain name for an amount in excess of out-of-pocket costs.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark HARD CANDY, with rights dating back to 2009.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent offered to sell the disputed domain name for an amount in excess of out of pocket costs.
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.”).
The disputed domain name is confusingly similar to Complainant’s mark as it merely adds the generic term “jewelry,” a hyphen, and a gTLD to Complainant’s wholly incorporated HARD CANDY mark. Additions of a generic term, hyphen, or a gTLD do not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist 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 Innomed Techs., Inc. v. DRP Servs., FA 221171 (Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy). Accordingly, the Panel finds that the <hardcandy-jewelry.com> domain name is confusingly similar to Complainant’s HARD CANDY mark per Policy ¶ 4(a)(i).
Respondent is not licensed or permitted to use Complainant’s HARD CANDY mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, relevant WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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.). Here, the WHOIS information identifies registrant as “Taneka Lindsey / Baltimore City.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Further, Respondent is not using the disputed domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. The disputed domain name does not resolve to an active website and Respondent has used the domain name by offering to sell it for an amount in excess of out-of-pocket costs. Specifically, Complainant offered to buy the disputed domain name, and that Respondent initially responded with a sales price of $80; later, Respondent informed Complainant it would not sell the disputed domain name for an amount less than $200.00; although Complainant agreed to purchase the disputed domain name for that price, Respondent again refused to sell it at that price, and instead put the domain name for sale on an auction site, in an attempt to get an even higher price for the domain name. This does not amount to a bona fide offering or good or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (Forum July 31, 2000) (finding no rights or legitimate interests where the respondent registered the domain name with the intention of selling its rights); see also Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name). Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as noted above, Respondent attempts to sell the disputed domain name for an amount in excess of the estimated out-of-pocket costs. This is evidence of bad faith per Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”); see also Dollar Rent A Car Sys., Inc. v. Jongho, FA 95391 (Forum Sept. 11, 2000) (finding that the respondent demonstrated bad faith by registering the domain name with the intent to transfer it to the complainant for $3,000, an amount in excess of its out of pocket costs); see also George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the< gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name). Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(i).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hardcandy-jewelry.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 26, 2018
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