Hypebeast Hong Kong Limited v. Allen Corres
Claim Number: FA2212002023899
Complainant is Hypebeast Hong Kong Limited (“Complainant”), represented by Jorge Arciniega of Loeb & Loeb LLP, California. Respondent is Allen Corres (“Respondent”), UK.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hypebeastwrld.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on December 13, 2022; Forum received payment on December 13, 2022.
On Dec 15, 2022, GoDaddy.com, LLC confirmed by e-mail to Forum that the <hypebeastwrld.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 December 16, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 5, 2023 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@hypebeastwrld.com. Also on December 16, 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 9, 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.
A. Complainant
Complainant contends as follows:
Complainant, Hypebeast Hong Kong Limited, offers men’s contemporary fashion.
Complainant has rights in the HYPEBEAST mark through its registration with multiple trademark organizations including the United States Patent and Trademark Office (“USPTO”) as well as other trademark registrars worldwide.
Respondent’s <hypebeastwrld.com> domain name is identical or confusingly similar to Complainant’s HYPEBEAST mark because it incorporates the mark in its entirety while adding the descriptive or geographic term “wrld”, which is likely an abbreviation of “world”, along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <hypebeastwrld.com> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized or licensed Respondent to use its HYPEBEAST 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 offers goods and services which compete with Complainant.
Respondent registered and uses the <hypebeastwrld.com> domain name in bad faith. Respondent offers competing services in disruption of Complainant’s business. Additionally, Respondent attracts users for commercial gain while creating a likelihood of confusion.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in HYPEBEAST.
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 HYPEBEAST trademark.
Respondent uses the at-issue domain name to offer goods and services which compete with Complainant.
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 ownership of a USPTO trademark registration, as well as multiple registrations with government trademark registrars worldwide, for the HYPEBEAST mark demonstrates Complainant’s rights in such mark for the purposes of Policy ¶ 4 (a)(I). See Fossil Group, Inc. v. wuruima wu, FA 1544486 (Forum Mar. 21, 2014) (holding, “Complainant’s registration of the FOSSIL mark with trademark agencies worldwide, including the USPTO and SAIC, establishes Complainant’s rights in the FOSSIL mark pursuant to Policy ¶ 4(a)(i).”).
Respondent’s <hypebeastwrld.com> domain name contains Complainant’s entire HYPEBEAST trademark followed the terms “wrld” and with all followed by the “.com” top-level domain name. The differences between Respondent’s domain name and Complainant’s trademark fail to distinguish <hypebeastwrld.com> from Complainant’s HYPEBEAST `mark pursuant to Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <hypebeastwrld.com> domain name is confusingly similar to Complainant’s HYPEBEAST trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)).
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 <hypebeastwrld.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 “er nong wu” and the record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <hypebeastwrld.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 products that compete with Complainant’s own merchandise. Such use of <hypebeastwrld.com> indicates neither a bona fide offering of goods or services, nor any legitimate non-commercial or fair use under Policy ¶¶ 4(c)(i) or (c)(iii) respectively. 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).”).
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 <hypebeastwrld.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.
Respondent’s <hypebeastwrld.com> website embodies Respondent’s own online footwear store. The store offers goods and services that are identical to those offered by Complainant under the HYPEBEAST mark. Respondent’s use of the confusingly similar <hypebeastwrld.com> domain name in this manner is disruptive to Complainant’s business and indicates Respondent’s bad faith registration and use of the domain name under Policy ¶ 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website).
Moreover, Respondent’s use of <hypebeastwrld.com> to attract internet users that falsely believe that the at-issue domain name will delivered them to content sponsored by or affiliated with Complainant and then capitalizing on such internet users’ confusion for Respondent’s own commercial benefit demonstrates Respondent’s bad faith registration and use of the domain name under Policy ¶ 4(b)(iv). See Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”); see also H-D Michigan, Inc. v. TT&R et al., FA 0209000126650 (Nat. Arb. Forum Nov. 20, 2002) (“In redirecting its <harleydavidsonsrus.com> domain name to its motorcycle sales website at <motorcycles-r-us.com>, Respondent used [c]omplainant’s mark to attract motorcycle buyers to its own website and created a strong likelihood of confusion as to whether [r]espondent had any affiliation with [c]omplainant. These actions violate Policy ¶ 4(b)(iv).”);
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hypebeastwrld.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 9, 2023
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