Interflora, Inc. v. Kenneth Chow
Claim Number: FA1712001764136
Complainant is Interflora, Inc. ("Complainant"), represented by Scott J. Major of Millen, White, Zelano & Branigan, P.C., Virginia, USA. Respondent is Kenneth Chow ("Respondent"), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <inter-flora.co>, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 22, 2017; the Forum received payment on December 22, 2017.
On December 26, 2017, GoDaddy.com, LLC confirmed by email to the Forum that the <inter-flora.co> 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 December 28, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 17, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@inter-flora.co. Also on December 28, 2017, the Written Notice of the Complaint, notifying Respondent of the email 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 January 19, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a corporation jointly owned by Florists' Transworld Delivery, Inc. (United States); Fleurop-Interflora (Switzerland); and Interflora British Unit (United Kingdom). Complainant provides florist association services to its constituent owners, their members, and more than 50,000 individual member retail florists. Complainant uses the INTERFLORA mark in connection with these services. Together with its licensees, Complainant owns trademark registrations for the INTERFLORA mark in the United States, the European Union, Hong Kong, Colombia, and other jurisdictions, and licenses the mark to its constituent owners on a territorial basis. Complainant began using the INTERFLORA mark in 1946, and has used it in Hong Kong since at least as early as 1951. Complainant asserts that the mark has been famous worldwide for years as a result of substantial sales and marketing activities.
The disputed domain name <inter-flora.co> was registered by Respondent in July 2013. It is being used in connection with a website that promotes retail floral services in Hong Kong, in direct competition with Complainant's licensees. Complainant states that Respondent is not a member of Complainant's network and has never been known by the INTERFLORA mark or the substantial equivalent. Complainant contends on these grounds that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent did not submit a Response.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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.").
The disputed domain name <inter-flora.co> corresponds to Complainant's registered INTERFLORA mark, with a hyphen inserted and the ".co" top-level domain appended thereto. These alterations do not distinguish the domain name from Complainant's mark for purposes of the Policy. See, e.g., ShopStyle, Inc. v. Tuan Chen, FA 1760231 (Forum Jan. 4, 2018) (finding <shop‑style.net> confusingly similar to SHOPSTYLE); Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (finding <rockwellautomation.co> identical to ROCKWELL AUTOMATION); Interflora, Inc. v. Main, FA 114299 (Forum July 5, 2002) (finding <inteflora.org> and <inteflora.net> confusingly similar to INTERFLORA). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name is nearly identical to Complainant's registered mark, and it is being used for a website that competes directly with Complainant or its licensees. Such use does not give rise to legitimate interests under the Policy. See, e.g., Interflora, Inc. v. Main, supra.
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent'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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered and is using a domain name that is nearly identical to Complainant's trademark for a website that competes directly with Complainant or its licensees. In light of Complainant's fame and the fact that the parties operate within the same industry, the Panel infers that Respondent was aware of Complainant and its mark, and intentionally selected and used a domain name corresponding to the mark in order to create confusion and disrupt Complainant's business. See, e.g., Interflora, Inc. v. Main, supra (finding bad faith registration and use in similar circumstances). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <inter-flora.co> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 22, 2018
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