Goop Inc. v. ChenJia Xing
Claim Number: FA1911001872672
Complainant is Goop Inc. (“Complainant”), represented by Buchalter, a Professional Corporation, California, United States. Respondent is ChenJia Xing (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <goopstore.com>, registered with eName Technology Co., Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Steven M. Levy, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 22, 2019; the Forum received payment on November 22, 2019.
On November 25, 2019, eName Technology Co., Ltd. confirmed by e-mail to the Forum that the <goopstore.com> domain name is registered with eName Technology Co., Ltd. and that Respondent is the current registrant of the name. eName Technology Co., Ltd. has verified that Respondent is bound by the eName Technology Co., Ltd. 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 November 27, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 17, 2019 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@goopstore.com. Also on November 27, 2019, 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 December 20, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Steven m 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, Goop Inc., is an expert in beauty, fashion, wellness, and home products. Complainant has rights in the trademark GOOP through its use in commerce since 2008 and its various registrations with the United States Patent and Trademark Office (“USPTO”) dating back to 2013. Respondent’s <goopstore.com> domain name is confusingly similar to Complainant’s mark as it includes the GOOP mark in its entirety, merely adding the generic term “store” and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <goopstore.com> domain name. Respondent is not commonly known by the disputed domain name and Respondent is not a licensee or authorized to use the Complainant’s GOOP mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s use of the disputed domain name resolves to a webpage selling unauthorized or counterfeit products.
Respondent registered and uses the <goopstore.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, Internet users by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights;
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the disputed domain name was registered and is being used by Respondent 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Preliminary Issue: Supported Language Request
The Complainant has requested that the language of this administrative proceeding be English pursuant to UDRP Rule 11(a). Complainant makes this request in light of the Chinese language Registration Agreement. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. In approaching this issue, the Panel may consider any evidence (or lack thereof) exhibiting Respondent’s understanding of the language requested by Complainant. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”)
In the present case, Complainant asserts that the terms “goop” and “store” are words in the English language and that the disputed domain name employs the Roman script which is used in the English language. It also notes that Respondent’s website that resolves from the disputed domain name appears in the English language. Therefore, and Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to indicate that the Respondent is very likely proficient in the English language. After considering the circumstance of the present case, the Panel decides that this proceeding should be in English.
Complainant asserts rights in the GOOP trademark based on its registration with the USPTO. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides copies of its USPTO registrations for the GOOP mark, each covering different goods or services. Accordingly, the Panel finds that Complainant has established rights in the GOOP mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <goopstore.com> domain name is confusingly similar to Complainant’s mark as it includes the GOOP mark in its entirety, adding the generic word “store,” and the gTLD “.com.” Additions of generic terms and a gTLD, does not distinguish a domain name for purposes of Policy ¶4(a)(i). See MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). The Panel therefore finds that the disputed domain name is confusingly similar to the GOOP mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Should it succeed in that effort, the burden then shifts to Respondent to show that it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent lacks rights or legitimate interests in the <goopstore.com> domain name. Specifically, Complainant argues that Respondent is not commonly known by the disputed domain name and Respondent is not licensed or otherwise authorized to use Complainant’s mark. In considering this issue, WHOIS information may be used to determine whether a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “ChenJia Xing,” and there is no other evidence to suggest that Respondent is known otherwise or that it is authorized to use the GOOP mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent fails to make a bona fide offering or goods or services or legitimate noncommercial or fair use. Specifically, Complainant argues that Respondent uses the <goopstore.com> domain name to sell unauthorized or counterfeit products in competition with Complainant. Sale of unauthorized or counterfeit products may be evidence that a respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name under Policy ¶¶ 4(c)(i) & (iii). See Watts Water Technologies Inc. v. wo ci fa men zhi zao (kun shan) you xian gong si, FA 1740269 (Forum Aug. 11, 2017) (“Respondent has used the domain name to resolve to a website that mimics the color scheme associated with Complainant’s WATTS brand and displays counterfeit versions of Complainant’s products for purchase in an attempt to pass itself off as Complainant… [therefore], the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.”) Here, Complainant contends that Respondent's website is “a knock-off of Complainant’s website” which prominently displays the GOOP trademark along with photographs of Complainant’s fashion and beauty related products and it submits a screenshot of Respondent’s website in support of this contention. The Panel notes that Respondent’s website does appear to be offering a number of items in the same categories as those offered by Complainant as well as certain skin care products bearing Complainant’s logo. The Panel finds that Complainant has made out a prima facie case that this use of the disputed domain name is not bona fide. As Respondent has not filed a Response or made any other submission in this case to refute the Complainant, the Panel finds that this use of the disputed domain name does not amount to a bona fide offering or good or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii).
Furthermore, Complainant claims that “it appears that Respondent is not truly selling goods, but rather is a phishing website attempting to steal consumer’s information.” However, no evidence is presented to support this claim and so the Panel does not have sufficient information upon which to consider this particular issue.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <goopstore.com> domain name be TRANSFERRED from Respondent to Complainant.
Steven M. Levy, Esq., Panelist
Dated: December 23, 2019
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