ABG Juicy Couture, LLC v. Linda Rizzo
Claim Number: FA2203001990028
Complainant is ABG Juicy Couture, LLC (“Complainant”), represented by Bridgette Fitzpatrick of Authentic Brands Group LLC, New York, USA. Respondent is Linda Rizzo (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <juicycoutureclothing.us>, registered with NameCheap, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 28, 2022; the Forum received payment on March 28, 2022.
On March 29, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <juicycoutureclothing.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On March 30, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 19, 2022 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@juicycoutureclothing.us. Also on March 30, 2022, 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 April 24, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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 contends as follows:
Complainant, ABG Juicy Couture LLC, sells women’s clothing and accessories.
Complainant has rights in the JUICY COUTURE mark based on registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <juicycoutureclothing.us> domain name is confusingly similar to Complainant’s JUICY COUTURE mark since it merely adds the term “clothing” and the “.us” county code top-level domain (“ccTLD”) to the mark.
Respondent lacks rights and legitimate interests in the <juicycoutureclothing.us> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not licensed or permitted Respondent to use the JUICY COUTURE mark. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the domain to offer counterfeit versions of Complainant’s goods.
Respondent registered and uses the <juicycoutureclothing.us> domain name in bad faith. Respondent uses the at-issue domain name to offer counterfeit versions of Complainant’s goods for sale. Additionally, Respondent failed to respond to Complainant’s cease and desist notice. Finally, Respondent had constructive and/or actual knowledge of Complainant’s rights in the JUICY COUTURE mark based on the fame of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the JUICY COUTURE trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the JUICY COUTURE trademark.
Respondent’s uses the <juicycoutureclothing.us> domain name to address a website pretending to be Complainant’s official website that offers counterfeit JUICY COUTURE products.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its JUICY COUTURE trademark. Such registration is sufficient to demonstrate Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”); see also Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”).
Respondent’s <juicycoutureclothing.us> domain name contains Complainant’s JUICY COUTURE trademark less its impermissible space, followed by the suggestive term “clothing,” and with all followed by the “.us” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish the <juicycoutureclothing.us> domain name from Complainant’s JUICY COUTURE trademark for the purposes of the Policy. Therefore, the Panel concludes that Respondent’s <juicycoutureclothing.us> domain name is confusingly similar to the JUICY COUTURE trademark under Policy ¶ 4(a)(i). See Kohler Co. v. Curley, FA 890812 (Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see also, Lockheed Martin Corp. v. Roberson, FA 323762 (Forum Oct. 19, 2004) (holding that the ccTLD “.us” does not differentiate the disputed domain name from Complainant’s mark).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue 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 <juicycoutureclothing.us> identifies the domain name’s registrant as “Linda Rizzo” and the record before the Panel contains no evidence showing that Respondent is commonly known by the <juicycoutureclothing.us> domain name. The Panel therefore concludes that Respondent is not commonly known by <juicycoutureclothing.us> for the purposes of Policy ¶ 4(c)(ii). See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”).
Respondent uses <juicycoutureclothing.us> to address a website displaying Complainant’s stylized JUICY COUTURE trademark and offering counterfeit JUICY COUTURE products for sale. Respondent’s use the of the at-issue domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Fadal Engineering, LLC v. DANIEL STRIZICH, INDEPENDENT TECHNOLOGY SERVICE INC, FA 1581942 (Forum Nov. 13, 2014) (finding that Respondent’s use of the at-issue domain name to sell products related to Complainant without authorization “does not amount to a bona fide offering of goods or services under policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also, 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.”).
Given the forgoing, Complainant satisfies its initial burden and shows Respondent’s lack of rights and legitimate interests in the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
Respondent uses the confusingly similar <juicycoutureclothing.us> domain name to address a website pretending to be sponsored by Complainant. There Respondent’s sells counterfeit JUICY COUTURE branded products. Using the confusingly similar domain name in such a manner is disruptive to Complainant’s business and falsely indicates that there is a sanctioned relationship between Complainant and Respondent when there is no such relationship. Respondent’s use of the domain name thus demonstrates Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Ontel Products Corporation v. waweru njoroge, FA1762229 (Forum Dec. 22, 2017) (“Respondent’s primary offering seem to be counterfeits of Complainant’s toy car products. Respondent’s use of the <magictrackscars.com> domain name is thus disruptive to Complainant’s business per Policy ¶ 4(b)(iii)”); see also H-D Michigan, LLC v. Ross, FA 1250712 (Forum Apr. 23, 2009) (determining that the respondent’s selling of counterfeit products creates the likelihood of confusion as to the complainant’s affiliation with the disputed domain name and allows the respondent to profit from that confusion and thus demonstrates bad faith per Policy ¶ 4(b)(iv)).
Moreover, Respondent had actual knowledge of Complainant’s rights in the JUICY COUTURE mark at the time it registered <juicycoutureclothing.us> as a domain name. Respondent’s actual knowledge is evident from the notoriety of the JUICY COUTURE trademark; from Respondent’s incorporation of Complainant’s trademark into the at-issue domain name along with a term suggestive of Complainant’s business; and from Respondent’s use of the domain name to impersonate Complainant and offer counterfeit JUICY COUTURE products for sale. Respondent’s registration and use of <juicycoutureclothing.us> with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <juicycoutureclothing.us> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 25, 2022
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