Anastasia Beverly Hills, Inc. v. Dimitrije Zivadinovic
Claim Number: FA1706001734622
Complainant: Anastasia Beverly Hills, Inc. of Atlanta, Georgia, United States of America.
Complainant Representative:
Complainant Representative: Greenberg Traurig, LLP of Atlanta, Georgia, United States of America.
Respondent: Dimitrije Zivadinovic of Nis, Nisavski, International, RS.
Respondent Representative: «cFirstName(none)» «cMiddle(none)» «cLastName(none)»
REGISTRIES and REGISTRARS
Registries: XYZ.COM LLC
Registrars: GoDaddy.com, LLC
The undersigned certifies that she acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Examiner in this proceeding.
Honorable Carolyn Marks Johnson sits as Examiner.
Complaint submitted: June 5, 2017
Commencement: June 6, 2017
Default Date: June 21, 2017
Having reviewed the communications records, the Examiner finds that the Forum discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
The Examiner finds that Respondent did not file a Response and is in default.
The Examiner finds that Complainant satisfied the burden as set out below.
The Examiner finds no bad faith by Complainant.
The Examiner finds that the disputed domain name shall be SUSPENDED for the duration of its registrations.
Although Respondent 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.
IDENTICAL TO OR CONFUSINGLY SIMILAR
Complainant met the standard set out in 1.2.6.1 of the URS Procedure since the Complainant proved its right to the valid U.S. trademark registration No. 3,679,514, first used in commerce 9-30-2000, registered 9-08-2009, covering goods and services, cosmetic preparations, eyebrow cosmetics, Non-medicated preparations all for the care of skin, hair, and scalp, a trademark that was verified as in current use.
Respondent does not challenge Complainant’s trademark rights.
The relevant part of the disputed domain name is ANASTASIABEVERLY; the added top-level domain being a required element of every domain name and the domain name type designations and/or extensions, all of which are irrelevant for assessing whether or not a mark is identical or confusingly similar to a protected mark; the addition of the descriptive “giveaway” in this case does nothing to distinguish the disputed domain name from the Complainant’s trademark.
Respondent filed no Response addressing URS Procedure 1.2.6.1.
The Examiner finds that the disputed domain name is confusingly similar to Complainant’s protected ANASTASIA BEVERLY HILLS mark; Complainant satisfied the elements of URS Procedure 1.2.6.1.
NO RIGHTS OR LEGITIMATE INTERESTS
Complainant met the standard set out in 1.2.6.2 of the URS Procedure since Complainant did not authorize Respondent to register a domain name containing its protected trademark and Complainant correctly urges that Respondent is not commonly known by the mark or the disputed domain name.
Complainant further asserts that Respondent acquired no legitimate interests in Complainant’s protected mark by purchasing or registering the disputed domain name, and using it to “phish” for personal information from Complainant’s customers, diverting Internet users with this come on from Complainant’s well known site to Respondent’s site for Respondent’s own personal gain under the ruse of a “give away” through which Respondent makes commercial gain by creating the false suggestion that Respondent’s sites are sponsored or offered by Complainant. Such use does not create a bona fide or legitimate use. Respondent did not file a Response and offered no proof in this case and nothing in the record gives rise to any suggestion that Respondent somehow has a legitimate interest in the disputed domain name containing in its entirety Complainant’s protected mark.
Respondent filed no Response addressing URS Procedure 1.2.6.2.
Accordingly, the Examiner finds that Respondent has no rights to or legitimate interests in the disputed domain name; Complainant satisfied the elements of URS Procedure 1.2.6.2.
BAD FAITH REGISTRATION AND USE
Complainant satisfied the requirements of URS Procedure 1.2.6.3.
As noted above, Respondent does not dispute Complainant’s trademark rights.
The record shows that the disputed domain name redirects to Respondent’s own site all for the purpose of Respondent’s own commercial gain and creating a likelihood of confusions for Internet users attempting to access Complainant’s ANASTASIA BEVERLY HILLS site for a “give away” through which Respondent falsely “phishes” for personal information from Complainant’s customers. This is classic fraudulent “phishing” and in and of itself shows bad faith registration and use. Such use further shows actual knowledge by Respondent of Complainant’s rights and interests in its own protected mark and goods and services and supports findings here that Respondent registered and uses this site in bad faith. See Complainant, Explanatory Statement.
The Examiner finds that Respondent registered and used the disputed domain name in bad faith; Complainant satisfied the elements of URS Procedure 1.2.6.3.
The Examiner finds that the Complaint was NOT brought in an abuse of this proceeding and did NOT contain material falsehoods.
After reviewing the Complainant’s submissions, the Examiner determines that
Complainant demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name be SUSPENDED for the duration of the registration.
Honorable Carolyn Marks Johnson (Ret.), Examiner
Dated: June 26, 2017
Honorable Carolyn M. Johnson (Ret.), Examiner
Dated: June 26, 2017
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