LuxAGe Group Inc v. hua yinglang
Claim Number: FA1505001617803
Complainant is LuxAGe Group Inc (“Complainant”), represented by Eric J. Shimanoff of Cowan, Liebowitz & Latman, P.C., New York, USA. Respondent is hua yinglang (“Respondent”), Hong Kong, China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <luxurysbazaar.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 4, 2015; the Forum received payment on May 4, 2015.
On May 5, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <luxurysbazaar.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 May 6, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 26, 2015 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@luxurysbazaar.com. Also on May 6, 2015, 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 June 1, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <luxurysbazaar.com> domain name is confusingly similar to Complainant’s LUXURY BAZAAR mark.
2. Respondent does not have any rights or legitimate interests in the <luxurysbazaar.com> domain name.
3. Respondent registered and uses the <luxurysbazaar.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns the LUXURY BAZAAR mark through its registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,413,381, registered Oct. 8, 2013). Complainant uses the LUXURY BAZAAR mark in connection with its jewelry and watch business.
Respondent registered the <luxurysbazaar.com> domain name on April 24, 2015, and uses it to pass itself off as Complainant and to “phish” for Internet users’ personal information.
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(e), 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 (Nat. Arb. 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 Panel finds that Complainant’s USPTO registration is sufficient to establish its rights under Policy ¶ 4(a)(i), even though Respondent resides in China. Prior panels have concluded that registration of a mark with a trademark authority is sufficient to establish rights in the mark pursuant to Policy ¶ 4(a)(i), even when Respondent does not reside in the country where the mark is registered. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Respondent’s <luxurysbazaar.com> domain name includes Complainant’s mark in full, eliminates the space between “luxury” and “bazaar,” inserts the letter “s,” and adds the gTLD “.com.” Prior panels have found that the addition of the letter “s” to a complainant’s mark does nothing to distinguish the disputed domain name from the complainant’s mark. See Nat’l Geographic Soc’y v. Stoneybrook Invs., FA 96263 (Nat. Arb. Forum Jan. 11, 2001) (finding that the domain name <nationalgeographics.com> was confusingly similar to the complainant’s NATIONAL GEOGRAPHIC mark). Prior panels routinely find that the addition of a gTLD and the elimination of spaces also fail to differentiate a disputed domain name from a complainant’s mark. See Metro-Goldwyn-Mayer Studios Inc. v. Antigua Domains, FA 1073020 (Nat. Arb. Forum Oct. 17, 2007) (“[T]he inclusion of the generic top-level domain ‘.com’ is inconsequential to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.”); see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Accordingly, the Panel finds that the <luxurysbazaar.com> domain name is confusingly similar to Complainant’s LUXURY BAZAAR mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name. Complainant asserts that Respondent is not commonly known by the disputed domain name, and that Complainant has not authorized Respondent to use Complainant’s trademark. The WHOIS information for the disputed domain name lists “hua yinglang” as the registrant of record. Therefore, the Panel finds that Respondent lacks rights to the disputed domain name under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant alleges that Respondent’s lack of rights or legitimate interests in the <luxurysbazaar.com> domain name is further evident by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Complainant shows that Respondent uses the <luxurysbazaar.com> domain name to sell the same products that Complainant sells and seeks to impersonate Complainant, using images that have been copied from Complainant’s website. Prior panels have found that where a respondent seeks to pass itself off as a complainant, the respondent has not established a bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name). Therefore, the Panel finds that Respondent has failed to establish either a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
Complainant also alleges that Respondent uses the disputed domain name to “phish” for Internet users’ personal information. According to Complainant, Respondent’s website invites unsuspecting users to enter their names, telephone numbers, and bank account information into the fraudulent web portal. Previous panels consistently hold that phishing for users’ personal and financial information is not a bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). Thus, the Panel finds that Respondent’s phishing demonstrates that Respondent is not making a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent uses the <luxurysbazaar.com> domain name to intentionally attract, for commercial gain, Internet users through a likelihood of confusion with Complainant. Respondent uses the disputed domain name for a website that falsely suggests that the website is sponsored by Complainant, using images copied from Complainant’s website. Previous panels have found that respondents who pass themselves off as a complainant under a confusingly similar domain name in order to sell competing products and services engage in bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Scholastic Inc. v. Applied Software Solutions, Inc., D2000-1629 (WIPO Mar. 15, 2001) (finding bad faith under Policy ¶ 4(b)(iv) because the respondent initially used the disputed domain name to sell educational services that targeted the complainant’s market); see also Smiths Group plc v. Snooks, FA 1372112 (Nat. Arb. Forum Mar. 18, 2011) (finding that the respondent’s attempt to impersonate an employee of the complainant was evidence of bad faith registration and use under Policy ¶ 4(a)(iii)). Thus, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv).
Respondent also uses the disputed domain name to “phish” for Internet users’ personal information, which is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <luxurysbazaar.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 4, 2015
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