Tarte, Inc. v. Gabriella Garlo
Claim Number: FA2103001939445
Complainant is Tarte, Inc. (“Complainant”), represented by Airina Rodrigues of Brownstein Hyatt Farber Schreck, Colorado, USA. Respondent is Gabriella Garlo (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tarte.foundation>, registered with NameCheap, 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 March 29, 2021; the Forum received payment on March 29, 2021.
On March 30, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <tarte.foundation> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 March 31, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 20, 2021 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@tarte.foundation. Also on March 31, 2021, 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 April 26, 2021, 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 is a leading manufacturer of high-quality, cruelty-free cosmetics and vegan skincare sold throughout the world. Complainant has rights in the TARTE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,742,879 registered Jul. 29, 2003). Respondent’s <tarte.foundation> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the TARTE mark in its entirety and adds the “.com” generic top-level domain (“gTLD”).
Respondent has no legitimate interests in the <tarte.foundation> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the TARTE mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves a page with various links related to the goods and services offered by Complainant and its competitors.
Respondent registered and uses the <tarte.foundation> domain name in bad faith. Respondent registered the disputed domain name in order to disrupt Complainant’s business and divert customers for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a leading manufacturer of high-quality, cruelty-free cosmetics and vegan skincare sold throughout the world. Complainant has rights in the TARTE mark through its registration of the mark with the USPTO (e.g., Reg. No. 2,742,879 registered Jul. 29, 2003). Tarte has continuously used the mark TARTE in connection with cosmetics, skincare and beauty products, among other goods since November 2003. Respondent’s <tarte.foundation> domain name is confusingly similar to Complainant’s mark.
Respondent registered the <tarte.foundation> domain name on October 27, 2020.
Respondent has no legitimate interests in the <tarte.foundation> domain name. The disputed domain name resolves a page with various links related to the goods and services offered by Complainant and its competitors.
Respondent registered and uses the <tarte.foundation> 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has rights in the TARTE mark under Policy 4(a)(i) based upon the registration with the USPTO (e.g., Reg. No. 2,742,879 registered Jul. 29, 2003). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).
Respondent’s <tarte.foundation> domain name is identical or confusingly similar to Complainant’s TARTE mark as it contains the TARTE mark in its entirety and adds the “.foundation” gTLD. The term “foundation” refers to a specific type of “cosmetics product” or “online information regarding foundation products,” as claimed in Tarte’s trademark registration for TARTE. The addition of a descriptive gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). 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).
Respondent lacks rights or legitimate interests in the <tarte.foundation> domain name since Respondent is not commonly known by the disputed domain names and Complainant has not authorized or licensed to Respondent any rights in the TARTE mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Gabriella Garlo,” and there is no other evidence to suggest that Respondent was authorized to use the TARTE mark. See Registrar Verification Email. Therefore, the Panel may find Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent fails to use the <tarte.foundation> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii) as the disputed domain name instead resolves to a page displaying links related to the goods and services associated with Complainant and its competitors. A respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) where the Respondent uses a domain to redirect users to competing services. See The Toronto-Dominion Bank v. GEORGE WASHERE, FA 1785311 (Forum June 7, 2018).
Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website for commercial gain. Therefore, Respondent registered and uses the <tarte.foundation> domain name in bad faith under Policy ¶ 4(b)(iii) and under Policy ¶ 4(b)(iv). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”); see also 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)).
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 <tarte.foundation> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: May 10, 2021
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