TGI Fridays Franchisor, LLC v. gueijuan xu
Claim Number: FA1710001754843
Complainant is TGI Fridays Franchisor, LLC (“Complainant”), represented by Leanne Stendell of TGI Fridays Franchisor, LLC, Texas, USA. Respondent is gueijuan xu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tgifriays.com>, registered with GoDaddy.com, LLC.
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 October 20, 2017; the Forum received payment on October 20, 2017.
On Oct 23, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <tgifriays.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 October 24, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 13, 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@tgifriays.com. Also on October 24, 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 November 14, 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, TGI Fridays Franchisor, LLC, has used its TGI FRIDAYS and related marks to offer its restaurant and bar services, along with related goods and services, since 1965. Complainant has rights in the TGI FRIDAYS mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,544,761, registered June 3, 2014). Respondent’s <tgifriays.com> is confusingly similar to Complainant’s TGI FRIDAYS mark, as the domain name consists entirely of the mark, merely omitting the space and the letter “D” from the mark and appending the “.com” generic top-level domain (“gTLD”). The resulting domain name is a clearly typosquatted version of Complainant’s mark.
Respondent has no rights or legitimate interests in the <tgifriays.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the TGI FRIDAYS mark. Respondent’s use of the disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the mark to divert Internet users to a website containing pornographic content.
Respondent registered and is using the <tgifriays.com> domain name in bad faith. Respondent has acquired the name for the purposes of selling it for an amount in excess of the costs directly related to the name’s registration. Also, the domain name is used to divert customers from Complainant for potential commercial gain. Further, Respondent’s typosquatting behavior and display of pornographic content on the resolving website are each independent evidence of bad faith. Finally, Respondent had actual knowledge of Complainant and its rights in the TGI FRIDAYS mark at the time it registered and subsequently used the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, TGI Fridays Franchisor, LLC, has used its TGI FRIDAYS and related marks to offer its restaurant and bar services, along with related goods and services, since 1965. Complainant has rights in the TGI FRIDAYS mark based upon its registration of the mark with the USPTO (e.g. Reg. No. 4,544,761, registered June 3, 2014). Respondent’s <tgifriays.com> is confusingly similar to Complainant’s TGI FRIDAYS mark.
Respondent, gueijuan xu, created the <tgifriays.com> domain name on October 05, 2017.
Respondent has no rights or legitimate interests in the <tgifriays.com> domain name.
Respondent registered and is using the <tgifriays.com> domain name in bad faith.
DISCUSSION
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 TGI FRIDAYS mark under Policy ¶ 4(a)(i) based upon registration of the mark with the USPTO. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Respondent’s <tgifriays.com> domain name is confusingly similar to the TGI FRIDAYS mark, as the name consists entirely of the mark, and merely omits the space and letter “D” in the mark, and adds the “.com” gTLD.
Respondent has no rights or legitimate interests in the <tgifriays.com> domain name. Respondent is not commonly known by the disputed domain name. Complainant has not authorized Respondent to use the TGI FRIDAYS mark. The WHOIS information of record identifies Respondent as “gueijuan xu.”
Respondent’s lack of rights or legitimate interests in the <tgifriays.com> domain name is also shown by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). Respondent’s domain name resolves to a website which displays adult-oriented material. See Tumblr, Inc. v. Srivathsan GK, FA1409001582401 (Forum Oct. 30, 2014) (“Consequently, the Panel finds that Respondent’s use of the disputed domain name for adult-oriented images also does not provide a bona fide offering of goods or services, or make a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).”).
Respondent’s typosquatting behavior is further evidence of its lack of rights and legitimate interests in the <tgifriays.com> domain name. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
Respondent’s use of the <tgifriays.com> domain name to host adult-oriented content is bad faith per Policy ¶ 4(a)(iii). See Molson Canada 2005 v. JEAN LUCAS / DOMCHARME GROUP, FA1412001596702 (Forum Feb. 10, 2015) (“Further, Respondent’s diversion of the domain names to adult-oriented sites is registration and use of the disputed domain names in bad faith under Policy ¶ 4(a)(iii).”).
Respondent use of the <tgifriays.com> domain name to create confusion with the TGI FRIDAYS mark potentially for commercial gain shows bad faith under Policy ¶ 4(b)(iv). See MySpace, Inc. v. Myspace Bot, FA 672161 (Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
Respondent’s typosquatting is evidence of its bad faith under Policy ¶ 4(a)(iii). See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)).
Respondent registered the <tgifriays.com> domain name with actual knowledge of Complainant's TGI FRIDAYS mark which is evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION 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 <tgifriays.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 20, 2017
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