Creative Artists Agency v. jp curtis
Claim Number: FA2109001963298
Complainant is Creative Artists Agency (“Complainant”), represented by Monica B. Richman of Dentons US LLP, Illinois, USA. Respondent is jp curtis (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <caafashion.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.
Nicholas J.T. Smith as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 10, 2021; the Forum received payment on September 10, 2021.
On September 13, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <caafashion.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 September 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 5, 2021 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@caafashion.com. Also on September 15, 2021, 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.
The Forum received correspondence from the Respondent on September 21, 2021 but no formal response. Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On October 7, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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 is a well-known talent agency that represents actors, directors, writers, producers, and many other artists. In August 2020, 2 months before the Domain Name was registered, Complainant launched its “CAA Fashion” division, offering agency services for workers in the fashion industry. Complainant has rights in the CAA mark through its registration of the mark in multiple trademark agencies around the world, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,219,378, registered on Dec. 7, 1982). Respondent’s <caafashion.com> domain name is identical or confusingly similar to Complainant’s CAA mark, as it only adds the descriptive word “fashion” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the Domain Name. Complainant has not authorized or licensed Respondent to use the CAA mark, nor is Respondent commonly known by the Domain Name. Further, Respondent is not using the Domain Name in connection with a bona fide offering of goods and services or legitimate noncommercial or fair use as the resolving website displays racist, disturbing content as part of an attempt to coerce Complainant into purchasing the Domain Name.
Respondent registered and uses the <caafashion.com> domain name in bad faith. Respondent uses the Domain Name to disrupt Complainant’s business by redirecting users to a website that displays offensive content. Additionally, Respondent had actual notice of Complainant’s rights, as evidenced by the notoriety and fame of Complainant’s mark. In addition, Respondent registered the Domain Name less than two months after Complainant’s launched its “CAA Fashion” division, indicating both actual notice and opportunistic bad faith.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. The Respondent did send an e-mail to the Forum on September 21, 2021, the relevant parts being extracted below.
“I LIVE IN A SENIOR LIVING RESIDENTAIL BLDG, SO STOP SENDING ME LETTERS
Why this domain is in dispute and locked?
caafashion.com: I purchase a year ago, and never used it, or emailed anyone
to buy it!
So Why you letting these rich people get away without buying their
domain name? if they want it so bad?
Godaddy, I have more then 200 domains with you right now!
I been buying Godaddy.com names for more then 20 years or so, and
I never had anything like this to happen to me, I try to make a little bit of
honest money to help me support myself.
I Never contact anyone asking to buy a domain I OWN!
I DON'T UNDERSTAND ALL OF THE STUFF THEY ARE ASKING FOR, AND DON'T CARE TOO!
I AM DEALING WITH COVID RIGHT NOW, THAT IS KILLING ME, SO I DON'T NEEDTHESE DEVILISH PEOPLE HOOVERING OVER ME! ...MY DISABLITY CHECK IS NOT ENOUGH TO TAKECARE OF ME MONTH BY MONTH, SO I SPEND WHAT I CAN, TO TAKEA CHANCE ON BUYING A DOMAIN THAT MAYBE SOMEONE WILL CONTACT ME TO BUY IT!
So please take care of this your way! (Take from the poor and give to the rich) just leave me alone!”
Complainant holds trademark rights for the CAA mark. The Domain Name is confusingly similar to Complainant’s CAA mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Name and that Respondent registered and has used the Domain Name 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 formal 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 CAA mark through its registration of the mark with the USPTO (e.g., Reg. No. 1,219,378, registered on Dec. 7, 1982). Registration of a mark with the USPTO is generally sufficient to establish rights in the mark per 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).”).
The Panel finds that the <caafashion.com> domain name is confusingly similar to Complainant’s CAA mark because it incorporates Complainant’s mark in its entirety, adding only the descriptive term “fashion” and the gTLD “.com.” Addition of generic or descriptive words and a gTLD does not sufficiently distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case and the communication by Respondent does not provide any evidence of rights or legitimate interests in the Domain Name, indeed it reinforces Complainant’s submission that Respondent purchased the Domain Name to sell it.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the CAA mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The WHOIS lists “jp curtis” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
The Domain Name is presently inactive but prior to commencement resolved to a website that, while purporting to provide evidence of racist practices in the United States, actually operated as a means for Respondent to display content that some would find offensive and shocking and for Respondent to actively indicate that the Domain Name was for sale. Absent any explanation by Respondent for its conduct the use of the Domain Name to resolve to a website offering content unrelated to the meaning of the Domain Name and prominently indicating that the Domain Name is for sale is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See AOL Inc. v. YourJungle Privacy Protection Service aka Whois Agent, FA1312001533324 (Forum Jan. 17, 2014) (“Respondent has offered the <aoljobsweek.com> domain name for sale to the general public, which demonstrates that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). See also Twentieth Century Fox Film Corporation v. Diego Ossa, FA1501001602016 (Forum Feb. 26, 2015) (“The Resolving parked page advertises the sale of the domain name with the message ‘Would you like to buy this domain?’ The Panel accepts this offer as demonstrative of Respondent’s willingness to sell the disputed domain name, and finds that such behavior provides additional evidence that Respondent lacks rights or legitimate interests in the disputed domain name.”)
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds on the balance of probabilities that, at the time Respondent registered the Domain Name, October 12, 2020, Respondent had actual knowledge of Complainant’s CAA mark which had been registered since 1982. Furthermore, there is no obvious explanation, nor has one been provided, for an entity to register a domain name that wholly incorporates to the CAA mark and words descriptive of a division of the Complainant’s agency launched with considerable publicity two months earlier and redirect to a website offering the Domain Name for sale other than to take advantage of Complainant’s reputation in the CAA Mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
Respondent has, without alternative explanation (or other legitimate use), registered a domain name that is confusingly similar to the CAA mark and offered it for sale to the public. An offer to sell a disputed domain name may be evidence of bad faith per Policy ¶ 4(b)(i). See Capital One Financial Corp. v. haimin xu, FA 1819364 (Forum Jan. 8, 2019) (“A general offer to sell a domain name can be evidence the respondent intended to make such an offer at the time it registered the name, supporting a finding of bad faith per Policy ¶ 4(b)(i).”). In the present case, given the nature of the Domain Name, the manner in which it has been used (for a website containing both material that some may find offensive and containing an explicit offer for sale), and the acknowledgement by the Respondent that the Domain Name was purchased for resale, the Panel finds that the Respondent registered and used the Domain Name in bad faith pursuant to Policy ¶ 4(b)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <caafashion.com> domain name be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: October 11, 2021
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