Ashley Furniture Industries, Inc. v. ERVAN MAULANA / EOC FORUM
Claim Number: FA1507001628927
Complainant is Ashley Furniture Industries, Inc. (“Complainant”), represented by Terrence J. Madden of Kostner, Koslo & Brovold LLC, Wisconsin, USA. Respondent is ERVAN MAULANA / EOC FORUM (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ashleyifurniture.com>, registered with ENOM, 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 July 14, 2015; the Forum received payment on July 17, 2015.
On July 16, 2015, ENOM, INC. confirmed by e-mail to the Forum that the <ashleyifurniture.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, 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 July 22, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 11, 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@ashleyifurniture.com. Also on July 22, 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 August 14, 2015, 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 owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the ASHLEY trademark (e.g., Reg. No. 1,600,879, registered June 12, 1990), the A ASHLEY FURNITURE trademark (e.g., Reg. No. 2,894,665, registered Oct. 19, 2004), and the A ASHLEY FURNITURE INDUSTRIES (e.g., Reg. No. 1,604,686, registered July 3, 1990). The marks are used in connection with the retail sale of furniture. The <ashleyifurniture.com> domain name is confusingly similar to the ASHLEY trademark because it contains the entire mark and adds the descriptive term “furniture” and the letter “i,” while also adding the generic top-level domain (“gTLD”) “.com.” The disputed domain name is confusingly similar to the A ASHLEY FURNITURE trademark because it contains the entire mark and simply removes the letter “A” and adds the letter “i” and the gTLD “.com.” The domain name is confusingly similar to the A ASHLEY FURNITURE INDUSTRIES trademark because it contains the entire mark and simply removes the letter “A” and the word “industries,” while also adding the letter “i” and the gTLD “.com.”
Respondent has no rights or legitimate interests. Respondent is not commonly known by the disputed domain name, nor is Respondent a licensee of Complainant. Respondent has not provided a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Rather, the disputed domain name resolves to a webpage displaying competing links.
Respondent has engaged in bad faith registration and use according to Policy ¶ 4(a)(iii). Respondent is attempting to commercially profit from a likelihood of confusion through its use of competing hyperlinks. Also, Respondent had actual knowledge of Complainant’s trademark rights in the ASHLEY marks when it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Ashley Furniture Industries, Inc., owns trademark registrations with the USPTO for the ASHLEY trademark (e.g., Reg. No. 1,600,879, registered June 12, 1990), the A ASHLEY FURNITURE trademark (e.g., Reg. No. 2,894,665, registered Oct. 19, 2004), and the A ASHLEY FURNITURE INDUSTRIES (e.g., Reg. No. 1,604,686, registered July 3, 1990). The marks are used in connection with the retail sale of furniture.
Respondent, ERVAN MAULANA / EOC FORUM, registered the <ashleyifurniture.com> domain name on March 19, 2015. The disputed domain name resolves to a webpage displaying competing links.
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.”).
Complainant has rights in the ASHLEY mark, the A ASHLEY FURNITURE, and the A ASHLEY FURNITURE INDUSTRIES mark under Policy ¶ 4(a)(i) through registration with the USPTO. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
The <ashleyifurniture.com> domain name is confusingly similar to the ASHLEY, A ASHLEY FURNITURE, and A ASHLEY FURNITURE INDUSTRIES trademarks. Respondent’s <ashleyifurniture.com> domain name contains the entire ASHLEY trademark and merely adds the descriptive term “furniture,” along with the letter “i” and the gTLD “.com.” The <ashleyifurniture.com> domain name contains the entire A ASHLEY FURNITURE mark and simply removes the letter “A” and adds the letter “i” and the gTLD “.com.” The <ashleyifurniture.com> domain name contains the entire A ASHLEY FURNITRE INDUSTRIES trademark and simply removes the letter “A” and the word “industries,” while also adding the letter “i” and the gTLD “.com.”
Respondent is not commonly known as the <ashleyifurniture.com> domain name. Complainant has not licensed or authorized Respondent to use Complainant’s trademarks. The WHOIS information lists “ERVAN MAULANA” as the registrant of the domain name. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent’s use of the <ashleyifurniture.com> domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. The domain name resolves to a webpage that displays links to some of Complainant’s competitors. Prior panels have declined to find rights under Policy ¶¶ 4(c)(i) or (iii) where a confusingly similar domain name is used to display competing links. See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii).”).
Respondent has engaged in bad faith registration and use. Respondent has displayed bad faith under Policy ¶ 4(b)(iv) by attempting to commercially profit from a likelihood of confusion. See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Respondent had actual knowledge of Complainant's trademark rights. Therefore, Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's 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 <ashleyifurniture.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 27, 2015
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