DC Labs, Inc. v. Yang Zhi Chao / 杨智超
Claim Number: FA2010001918504
Complainant is DC Labs, Inc. (“Complainant”), represented by Katherine Bond of Cislo & Thomas, LLP, United States. Respondent is Yang Zhi Chao / 杨智超 (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ovationhaircare.com>, registered with DNSPod, Inc..
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 27, 2020; the Forum received payment on October 27, 2020.
On October 28, 2020, DNSPod, Inc. confirmed by e-mail to the Forum that the <ovationhaircare.com> domain name is registered with DNSPod, Inc. and that Respondent is the current registrant of the name. DNSPod, Inc. has verified that Respondent is bound by the DNSPod, Inc. 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 9, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 30, 2020 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@ovationhaircare.com. Also, on November 9, 2020, 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 3, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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, DC Labs Inc., is engaged in the production, sale, and distribution of hair care products. Complainant has rights in the OVATION HAIR mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,142,800 registered May 15, 2012). Respondent’s <ovationhaircare.com> domain name is nearly identical to Complainant’s mark but for the addition of the generic term “care.”
Respondent does not have rights or legitimate interests in the <ovationhaircare.com> domain name because Respondent is not associated with Complainant and is not permitted to use Complainant’s OVATION HAIR mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent hosts parked advertisements and links.
Respondent registered and uses the <ovationhaircare.com> domain name in bad faith. Respondent financially benefits from Complainant’s notoriety and goodwill by hosting links at the disputed domain. Additionally, Respondent had full knowledge of Complainant’s rights in the OVATION HAIR mark when it acquired the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is DC Labs, Inc. (Complainant), of Carlsbad, CA, USA. Complainant is the owner of domestic and global registrations for the marks OVATION and OVATION HAIR as well as various related marks that form the family of OVATION marks. Complainant has continuously used its marks since at least as early as 2007 in connection with its provision of hair care products and services. Complainant also uses its marks in cyberspace at various websites including <ovationhair.com>.
Respondent is Yang Zhi Chao / 杨智超 (Respondent), of China. Respondent has used privacy functions to hide much of its identity information including its specific address and that of its registrar. The Panel notes that the disputed domain name was registered on or about September 24, 2020.
Preliminary Issue – Language of the Proceedings
Complainant has alleged that because Respondent speaks and understands English the proceeding should be conducted in English. The Panel notes that under UDRP Rule 11(a) it has the discretion to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. The Panel here notes that Respondent registered a domain name in English specifically. The Panel finds Pursuant to Rule 11(a) that the evidence is sufficient to warrant that the proceeding be conducted in English. See FilmNet Inc. v Onetz, FA 96196 (Forum Feb. 12, 2001) (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English.).
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”).
Complainant asserts rights in the OVATION HAIR mark based upon registration with the USPTO. Registration with the USPTO is generally sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)). Complainant provides evidence of its registration with the USPTO (e.g., Reg. No. 4,142,800, registered May 15, 2012). The Panel here finds that Complainant has rights in the OVATION HAIR mark under Policy ¶ 4(a)(i).
Respondent’s <ovationhaircare.com> domain name is nearly identical to Complainant’s mark but for the addition of the generic term “care.” The Panel notes that the disputed domain name additionally appends the “.com” generic top-level domain (“gTLD”). The addition of a generic or descriptive term and a gTLD to a mark is generally insufficient to distinguish a domain name from the mark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”). The Panel here finds that the disputed domain name is identical and/or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent raises no contentions regarding Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that 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), then the burden shifts to Respondent to show 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”). The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <ovationhaircare.com> domain name because Respondent is not associated with Complainant and is not permitted to use Complainant’s OVATION HAIR mark. WHOIS information can support a finding that a respondent lacks rights and legitimate interests in a disputed domain name under Policy ¶ 4(c)(ii) when there is no available information to suggest that the respondent is commonly known by the domain name or authorized to use the complainant’s mark. 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.). The WHOIS information of record lists the registrant as “Yang Zhi Chao,” and Complainant contends that it did not authorize Respondent’s use of the OVATION HAIR mark. The Panel here finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent fails to use the <ovationhaircare.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use and instead hosts parked advertisements and links. Use of a disputed domain name to host commercial hyperlinks is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”). Complainant provides screenshots of Respondent’s website, highlighting headings such as “CUSTOM SHAMPOO” and “HAIR PRODUCTS.” Complainant also notes that the links redirect to websites that sell competing hair care products. The Panel here finds that Respondent’s use does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Respondent raises no contentions regarding Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant claims that Respondent registered and uses the <ovationhaircare.com> domain name in bad faith because Respondent financially benefits from Complainant’s notoriety and goodwill by hosting links at the disputed domain. Use of a confusingly similar domain name to display third-party commercial hyperlinks is evidence of bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)). The Panel recalls that Complainant provides screenshots of the webpage resolving at the disputed domain. Complainant additionally notes that the links on the resolving webpage are in the same field as Complainant’s business and Respondent presumably commercially benefits from the webpage through click-through fees. The Panel here finds Respondent’s action represent bad faith registration and use under Policy ¶ 4(b)(iv).
Additionally, Complainant argues that Respondent had full knowledge of Complainant’s rights in the OVATION HAIR mark when it acquired the <ovationhaircare.com> domain name. Actual knowledge of a complainant’s rights in a mark may evidence bad faith per Policy ¶ 4(a)(iii) and can be shown by the entirety of circumstance surrounding registration and use of the domain name. See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”); see also eBay, Inc v. Progressive Life Awareness Network, D2001-0068 (WIPO Mar. 16, 2001) (finding bad faith pursuant to Policy ¶ 4(b)(iv) where the respondent capitalized on the fame associated with the complainant’s EBAY mark and profited from it by diverting users seeking the complainant to the respondent’s website). Complainant argues that Respondent’s knowledge is apparent from the fame and distinctiveness of the OVATION HAIR mark and Respondent’s use of the mark to attract Internet users to competing webpages. The Panel here finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Respondent raises no contentions regarding Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the applicable ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <ovationhaircare.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
December 17, 2020
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