TruSkin Partners Inc. v. wouter akika / Akika.com
Claim Number: FA2205001996009
Complainant is TruSkin Partners Inc. (“Complainant”), represented by Laila S. Wolfgram of Polsinelli PC, Missouri, USA. Respondent is wouter akika / Akika.com (“Respondent”), Belgium.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <truskyn.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 11, 2022; the Forum received payment on May 11, 2022.
On May 12, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <truskyn.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 May 17, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 6, 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@truskyn.com. Also on May 17, 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. Respondent did however send an email to the Forum, see below.
On June 14, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it produces and sells premium skin care products for all skin types. Complainant has rights in the TRUSKIN mark through its registration of the mark in the United States in 2015.
Complainant alleges that the disputed domain name is virtually identical and confusingly similar to its TRUSKIN mark because it consists of a misspelling of the mark (the the letter “i” is replaced with the letter “y”), merely adding the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the TRUSKIN mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services nor legitimate noncommercial or fair use. Instead, the disputed domain name resolves a page that advertises competing products. Respondent also offers the disputed domain name for sale to the general public for a price in excess of out-of-pocket costs. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent offers the disputed domain name for sale to the general public for a price in excess of out-of-pocket costs. Respondent registered the disputed domain name in order to disrupt Complainant’s business and divert customers for commercial gain. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the TRUSKIN mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its email to the Forum, Respondent states: “We already anticipated this a month ago & no longer use that name. I've gone through your documents but I don’t see a resolution? Can we just set up a redirect to our new name? Or does truskin want to buy the domain truskyn.com from us? Or do they want us to take the domain offline?”
Complainant owns rights in the mark TRUSKIN dating back to 2015 and uses it to market skin care products.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website offers for sale products that compete with those of Complainant. The disputed domain name is offered for sale for a price in excess of out-of-pocket costs.
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”).
The disputed domain name consists of a misspelling of Complainant’s TRUSKIN mark (the the letter “i” is replaced with the letter “y”), merely adding the “.com” generic top-level domain (“gTLD”). The replacement of a single letter and the addition of a gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (finding, “The domain name differs from the mark only in that the domain name substitutes the letter ‘a’ in the word ‘steak’ with the letter ‘c’ and adds the generic Top Level Domain (‘gTLD’) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”); see also Staples, Inc. v. Whois Privacy Shield Services, FA 1617690 (Forum June 5, 2015) (holding that “Changing a single letter (especially when it is the final letter) is a minor enough change to support a finding of confusing similarity under Policy ¶ 4(a)(i).”). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not authorized or licensed to Respondent any rights in the TRUSKIN mark. Respondent is not commonly known by the disputed domain name: WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “wouter akika / Akika.com”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name resolves to a website that offers for sale products that compete with those of Complainant. Where the Respondent uses a domain to advertise competing products, the Panel may find that respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
Further, Respondent offers the disputed domain name for sale for a price in excess of out-of-pocket costs. A general offer of sale can be construed as further evidence of a respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii). 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).”).
For all the above reasons, the Panel find that Respondent lacks rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s silence as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent attempts to attract Internet users to its competing website for commercial gain. Use of a disputed domain name to redirect consumers to competing goods or services can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii) and/or (iv).
Further, also as already noted, Respondent offers the disputed domain name for sale to the public for a price in excess of out-of-pocket costs. A general offer of sale of a disputed domain name can be evidence of bad faith registration and use under Policy ¶ 4(b)(i). See Airbnb, Inc. v. Super Privacy Service LTD c/o Dynadot, FA 1821386 (Forum Jan. 10, 2019) (“Complainant argues that Respondent registered and uses the <airbnbb.com> domain name in bad faith by offering it for sale. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(i).”); see also RetailMeNot, Inc. v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1506001625879 (Forum Aug. 6, 2015) (finding that the respondent had listed the disputed domain name for sale at Go Daddy’s auction website for $11,706, which thus indicated bad faith under Policy ¶ 4(b)(i)). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(i).
Finally, by merely replacing the letter “i” in Complainant’s mark with the letter “y”, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Webster Financial Corporation and Webster Bank, National Association v. Zhichao Yang, FA2110001970133 (Forum Nov. 24, 2021) (“Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a domain name hoping that internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark, or will otherwise confuse the misspelled trademark laden domain name with its target trademark, a web address, an email address, or some other reference to the mark holder.”); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Sports Auth. Mich., Inc. v. Skander, FA 135598 (Forum Jan. 7, 2002) (stating that “[b]y registering the ‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent profits on the goodwill of [Complainant’s] protected marks and primary Internet domain names,” which is evidence of bad faith registration and use). As such, the Panel finds bad faith typosquatting under 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 <truskyn.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 14, 2022
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