URS DEFAULT DETERMINATION


Seafolly IP Co. Pty Ltd (formerly known as P & Y Halas Pty Limited) v. 罗元凡
Claim Number: FA1712001762108


DOMAIN NAME

<seafolly.vip>


PARTIES


   Complainant: Seafolly IP Co. Pty Ltd (formerly known as P & Y Halas Pty Limited) of ALEXANDRIA, --, Australia
  
Complainant Representative: K&L Gates Jonathan A Feder of Melbourne, --, Australia

   Respondent: 罗元凡 罗元凡 罗元凡 of 阿勒泰地区, 新疆, II, CN
  

REGISTRIES and REGISTRARS


   Registries: Minds + Machines Group Limited
   Registrars: Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn)

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.
   Alan L. Limbury, as Examiner

PROCEDURAL HISTORY


   Complainant Submitted: December 10, 2017
   Commencement: December 11, 2017
   Default Date: December 28, 2017
   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: [OptionalComment]

  

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:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant 


Ignoring the gTLD ".vip", which is inconsequential as regards this element, the domain name is identical to Complainant's word mark SEAFOLLY, registered in Australia on November 17, 2005, No.1086227 and internationally on May 17, 2006, No. 896290. The mark is also registered with the Trademark Clearing House and is in current use.


[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.

Determined: Finding for Complainant 


Complainant's assertions that Respondent is not known by the domain name, is not authorised to register or use the domain name and has no rights or legitimate interest in that name establish a prima facie case of lack of rights or legitimate interests in the domain name on the part of Respondent, who has failed to rebut that conclusion.


[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site 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 Registrant’s web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant 


In light of the international reputation of Complainant's distinctive SEAFOLLY mark, Respondent must have known of Complainant’s SEAFOLLY mark when registering the domain name did so in bad faith. There is no conceivable good faith use to which the domain name may be put by anyone other than Complainant, hence Respondent’s passive use of the domain name constitutes use of the domain name in bad faith.


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:


  1. The Complaint was neither abusive nor contained material falsehoods. 

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:

  1. seafolly.vip

 

Alan L. Limbury
Examiner
Dated: December 29, 2017

 

 

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