Teton Outfitters LLC v. jiang xiufang
Claim Number: FA2212002022493
Complainant is Teton Outfitters LLC (“Complainant”), represented by Lindsay M.R. Jones of Merchant & Gould, P.C., US. Respondent is jiang xiufang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <klimclubs.com>, registered with Gname.com Pte. Ltd..
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 Forum electronically on December 1, 2022; Forum received payment on December 1, 2022.
On Dec 5, 2022, Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <klimclubs.com> domain name is registered with Gname.com Pte. Ltd. and that Respondent is the current registrant of the name. Gname.com Pte. Ltd. has verified that Respondent is bound by the Gname.com Pte. 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 December 6, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 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@klimclubs.com. Also on December 6, 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, Forum transmitted to the parties a Notification of Respondent Default.
On January 3, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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.
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest that notwithstanding that the operative registration agreement may be in Chinese and English, there is a likely possibility that the Respondent is reasonably conversant and proficient in the English language and that going forward in a language other than English would place an unjust burden on Complainant. Therefore, after considering the circumstances of the present case including Respondent’s failure to respond or object to going forward in English, the Panel finds that the proceeding should be in English.
A. Complainant
Complainant contends as follows:
Complainant, Teton Outfitters LLC, is an outdoor and recreational clothing and accessory brand.
Complainant has rights in the KLIM mark through its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <klimclubs.com> domain name is confusingly similar to Complainant’s mark as it incorporates the mark in its entirety while adding the term “clubs” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <klimclubs.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized or licensed Respondent to use its KLIM mark in the at-issue domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead diverts users to third parties in competition with Complainant.
Respondent registered and uses the <klimclubs.com> domain name in bad faith. Respondent engages in a pattern of bad faith registration and use. Additionally, Respondent diverts users to its competing website and attracts users for commercial gain while creating a likelihood of confusion. Furthermore, Respondent registered the domain name with actual knowledge of Complainant’s rights in the KLIM mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the KLIM mark.
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 KLIM trademark.
Respondent uses the at-issue domain name to address a website that offers goods for sale that compete with Complainant’s offering.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the KLIM mark with the USPTO demonstrates Complainant’s rights in a mark under 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)).
Respondent’s <klimclubs.com> domain name contains Complainant’s KLIM trademark followed by the descriptive term “clubs” with all followed by the “.com” top-level domain name. The differences between Complainant’s trademark and Respondent’s at-issue domain name fail to distinguish the domain name from the mark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <klimclubs.com> domain name is confusingly similar to Complainant’s KLIM trademark. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”).
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). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <klimclubs.com> 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 legitimate interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name reveals that the domain name’s registrant is “Jiang Xiufang” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <klimclubs.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the at-issue domain name to address a website offering goods that appear to compete with Complainant’s offering. Such use of <klimclubs.com> indicates neither a bona fide offering of goods or services, nor any legitimate non-commercial or fair use. 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).”); see also, Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”);.
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Respondent’s <klimclubs.com> domain name was registered and used in bad faith. As discussed below without being exhaustive, bad faith circumstances are present which lead the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent’s confusingly similar domain name attracts internet users that falsely believe that Respondent’s <klimclubs.com>domain name will delivered them to content sponsored by or affiliated with Complainant. Respondent then exploits such internet users’ confusion by offering competing products. Doing so demonstrates Respondent’s bad faith registration and use of <klimclubs.com> under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business); see also, Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also, G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract internet users to its commercial website);
Moreover, Respondent had actual knowledge of Complainant’s rights in the KLIM mark when it registered <klimclubs.com> as a domain name. Respondent’s prior knowledge of Complainant’s trademark is evident from the notoriety of Complainant’s trademark and from Respondent’s use of the domain name to address a website offering goods that compete with Complainant’s offering. Registering and using the confusingly similar <klimclubs.com> domain name with knowledge of Complainant’s rights in KLIM further shows Respondent’s bad faith registration and use of <klimclubs.com> under 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, Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (“Complainant contends Respondent’s appropriation of Complainant’s trademark was a clear intent to trade upon Complainant’s reputation and goodwill in order to confuse Internet users. Therefore, the Panel finds Respondent did have actual knowledge of Complainant’s mark prior to registration and this constitutes bad faith per Policy ¶ 4(a)(iii).”); 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 name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <klimclubs.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 3, 2023
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