Rastaclat, LLC v. Elizabeth Davis
Claim Number: FA1704001725692
Complainant is Rastaclat, LLC (“Complainant”), represented by Philip Nulud of Buchalter, a Professional Corporation, California, USA. Respondent is Elizabeth Davis (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rastaclatbracelet.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 April 6, 2017; the Forum received payment on April 6, 2017.
On April 8, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <rastaclatbracelet.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 April 12, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 2, 2017 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@rastaclatbracelet.com. Also on April 12, 2017, 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 May 10, 2017, 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, Rastaclat, LLC, is an accessories manufacturer based in Long Beach, California. In connection with this business, Complainant uses the RASTACLAT mark. Complainant has rights in the RASTACLAT mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 4,367,845, registered July 16, 2013). Respondent’s domain name, <rastaclatbracelet.com>, is confusingly similar as it contains Complainant’s mark in its entirety and appends the descriptive term “bracelet”, as well as the generic top-level domain (“gTLD”) suffix “.com.”
Respondent lacks rights and legitimate interests in the disputed domain name. Respondent has not been commonly known by <rastaclatbracelet.com>, nor has Respondent used the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, the resolving website states that Respondent is a dealer of Complainant’s products in an attempt by Respondent to pass off as Complainant.
Respondent registered and used <rastaclatbracelet.com> in bad faith. Respondent is disrupting Complainant’s business, and diverts users seeking Complainant to Respondent’s website for Respondent’ commercial gain in a fraudulent scheme to “phish” for Internet users’ personally identifiable information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Rastaclat, LLC, is an accessories manufacturer based in Long Beach, California. Complainant uses the RASTACLAT mark. Complainant has rights in the RASTACLAT mark based upon registration with the USPTO (Reg. No. 4,367,845, registered July 16, 2013). Respondent’s domain name, <rastaclatbracelet.com>, is confusingly similar to Respondent’s mark.
Respondent, Elizabeth Davis, registered <rastaclatbracelet.com> on December 22, 2016.
Respondent lacks rights and legitimate interests in the disputed domain name.
Respondent registered and used <rastaclatbracelet.com> 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 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.”).
Complainant has rights in the RASTACLAT mark under Policy ¶ 4(a)(i) based upon registration with the USPTO. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office).
Respondent’s domain name, <rastaclatbracelet.com>, is confusingly similar under Policy ¶ 4(a)(i) as it contains Complainant’s mark in its entirety and appends the descriptive term “bracelet”, as well as the gTLD “.com” to the end.
Respondent has not been commonly known by <rastaclatbracelet.com>. The WHOIS information of record identifies “Elizabeth Davis” as the registrant. See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum Jun. 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names). Use of a privacy service to register a domain name is behavior non-consistent with being commonly known by said domain name. See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel notes that the WHOIS information merely lists a privacy service as registrant. In light of Respondent’s failure to provide any evidence to the contrary, the Panel finds there is no basis to find Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).”).
Respondent failed 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. Instead, the resolving website states that Respondent is a dealer of Complainant’s products in an attempt by Respondent to pass off as Complainant. Respondent lists items for sale as having come directly from Complainant’s factory. Use of a disputed domain name to pass off as a complainant for a respondent’s personal gain does not indicate rights and legitimate interests per Policy ¶¶ 4(c)(i) & (iii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (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); see also Mortgage Research Center LLC v. Miranda, FA 993017 (Forum Jul. 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”).
Respondent registered and used <rastaclatbracelet.com> in bad faith. Complainant argues Respondent is attracting Internet users seeking Complainant or Complainant’s goods and services to Respondent’s website for Respondent’s commercial gain through the sale of counterfeit items of Complainant. Registration and use of a domain name that creates a likelihood of confusion for the sale of counterfeit products indicates bad faith registration and use per Policy ¶ 4(b)(iv). See Fossil Inc. v. NAS, FA 92525 (Forum Feb. 23, 2000) (finding that the respondent acted in bad faith by registering the <fossilwatch.com> domain name and using it to sell various watch brands where the respondent was not authorized to sell the complainant’s goods); see also Affliction, Inc. v. Chinasupply, FA 1223521 (Forum Oct. 23, 2008) (finding that the respondent attempts to commercially gain by creating confusion as to the complainant’s connection with the website by selling counterfeit products, and thus showed Policy ¶ 4(b)(iv) bad faith).
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 <rastaclatbracelet.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: May 20, 2017
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