URS DEFAULT DETERMINATION
Skechers U.S.A., Inc. II v. 李艳忠
Claim Number: FA1511001647498
DOMAIN NAME
<skechers.xin>
PARTIES
| Complainant: Skechers U.S.A., Inc. II of Manhattan Beach, CA, United States of America | |
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Complainant Representative: Kleinberg & Lerner, LLP
Marshall A Lerner of Los Angeles, CA, United States of America
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| Respondent: 李艳忠 of 连云港市, 江苏, II, CN | |
REGISTRIES and REGISTRARS
| Registries: Elegant Leader Limited | |
| Registrars: |
EXAMINER
| 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 Examiner in this proceeding. | |
| Ms. Kateryna Oliinyk, as Examiner |
PROCEDURAL HISTORY
| Complainant Submitted: November 20, 2015 | |
| Commencement: November 23, 2015 | |
| Default Date: December 8, 2015 | |
| Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules"). |
RELIEF SOUGHT
| Complainant requests that the domain name be suspended for the life of the registration. |
STANDARD OF REVIEW
| Clear and convincing evidence. |
FINDINGS and DISCUSSION
| Findings of Fact: Under URS 9.1. the evidences will be the materials submitted with the Complaint and the Response, and those materials will serve as the entire records used by the Examiner to make a Determination. URS 8.2. reads that the burden of proof shall be clear an convincing evidences. Under URS 8.6. if the Examiner finds that all three standards provided for by URS 8.1. are satisfied by clear and convincing evidences and that there is no genuine contestable issue, then the Examiner shall issue a Determination in favour of the Complainant. Any of the defenses must be asserted by showing that there are facts legally sufficient to excuse the Respondent. The Complainant contends that they are a multi-billion-dollar global leader in the lifestyle and performance footwear industry that went public in 1999. Skechers' footwear products are sold around the world. The trademark SKECHERS is the house marks of the company that appears on Skechers branded products. The SKECHERS trademark has been registered in numerous jurisdictions worldwide including in the U.S. (Reg. No. 1851977) and Europe (CTM Reg. No. 4307691). In addition, the SKECHERS trademark is duly registered with the Trademark Clearing House. Thus, the Complainant contends that it has valid trademark rights in the “SKECHERS” mark and that the Respondent does not have any legitimate right or interest to the domain name <skechers.xin> and that the Respondent registered and is using the domain name in bad faith. Respondent has not submitted the response. Thus, under URS 12 the case enters default and the Examiner proceeds to review the Complaint for a prima facie case, including complete and appropriate evidence. Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended. |
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Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark: Determined: Finding for Complainant The registered domain name <skechers.xin>fully incorporates the word mark SKECHERS for which the Complainant holds valid U.S. Reg. No. 1851977 and that is in current use. In addition, it is well accepted that the top level domain is irrelevant in assessing identity or confusing similarity, thus “.xin” is of no consequence here. Respectively, the Examiner finds that the domain name <skechers.xin> is identical to the Complainant’s SKECHERS mark under URS 1.2.6.1. (i). [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant The Examiner determines that the Respondent is not commonly known by the SKECHERS name as nothing in the records of the file indicates that, and the Respondent has no connection or affiliation with the Complainant and has not received any license or consent, express or implied, to use Complainant’s SKECHERS mark in a domain name or otherwise. The domain name is neither generic nor descriptive. The Examiner is satisfied that the Complainant has made a prima facie showing of the Respondent's lack of rights or legitimate interests in that the Respondent does not appear to be known by the disputed domain name and has not been authorised by the Complainant to use its trademark in any manner whatsoever. Furthermore, given the Respondent's incorporation in the disputed domain name of a trademark which is highly distinctive and exclusively referable to the Complainant, the Examiner cannot conceive of any possible right or legitimate interest which the Respondent could have in the disputed domain name. Accordingly, the burden shifts to the Respondent to prove that it has such rights and interests. The Respondent has chosen not to respond to the Complainant's contentions nor to provide any evidence of rights or legitimate interests in the disputed domain name. Therefore, the Examiner finds that the Complaint meets URS requirement of 1.2.6.2.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant The bad faith exists where the respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website 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 its website or location or of a product or service on its website or location. The domain name consists of the SKECHERS name combined with the suffix ”.xin” which refers to trust in Chinese. By registering in the .xin gTLD, Respondent creates an illusion that the website is trustworthy. The Complainant's trademark has a strong reputation, is highly distinctive and is widely known. As the SKECHERS trademark has been submitted to and verified by Trademark Clearing House, Respondent must have received a warning from Trademark Clearing House indicating that the SKECHERS trademark belongs to Skechers. Despite this warning, Respondent chose to continue with the registration of skechers.xin in violation of Skechers' rights. Further, Respondent opted not to submit the response to the Complaint. Due to the lack of any evidence whatsoever of any actual or contemplated good faith use by him of the disputed domain name, the Examiner cannot conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant's rights under trademark law. Thus, the Examiner finds the domain name <skechers.xin> misleading that supports finding of bad faith registration under URS 1.2.6.3.(d). FINDING OF ABUSE or MATERIAL FALSEHOOD The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. The Examiner finds as follows:
DETERMINATION
After reviewing the parties’ submissions, the Examiner determines that the Complainant
has demonstrated all three elements of the URS by a standard of clear and convincing
evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for
the duration of the registration:
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Ms. Kateryna Oliinyk Examiner
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