Teton Outfitters LLC v. Lanying Han
Claim Number: FA2212002024554
Complainant is Teton Outfitters LLC (“Complainant”), represented by Lindsay M.R. Jones of Merchant & Gould, P.C., USA. Respondent is Lanying Han (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <klimvendita.com>, registered with Name.com, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on December 19, 2022; Forum received payment on December 19, 2022.
On Dec 20, 2022, Name.com, Inc. confirmed by e-mail to Forum that the <klimvendita.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 20, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 9, 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@klimvendita.com. Also on December 20, 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 10, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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
1. Respondent’s <klimvendita.com> domain name is confusingly similar to Complainant’s KLIM mark.
2. Respondent does not have any rights or legitimate interests in the <klimvendita.com> domain name.
3. Respondent registered and uses the <klimvendita.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Teton Outfitters, LLC, is a provider of outdoor and recreational clothing and accessories. Complainant holds a registration for the KLIM mark with various trademark registrations, including with the United States Patent and Trademark Office (“USPTO”) (e.g. USPTO Reg. No. 3,201,103, registered on January 23, 2007).
Respondent registered the <klimvendita.com> domain name on September 16, 2022, and uses it to divert Internet traffic to a competing website that mimics Complainant’s.
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 Panel finds that Complainant has rights in the KLIM mark through trademark registrations, including with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”)
Respondent’s klimvendita.com> domain name uses the entire KLIM mark and adds the term “vendita” (referring to sales) and the “.com” gTLD. The use of an entire mark within a disputed domain name has been found sufficient for a finding of confusing similarity. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable 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.”); see also Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”). The Panel finds that Respondent’s <klimvendita.com> domain name is confusingly similar to Complainant’s KLIM mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent has no rights or legitimate interests in the <klimvendita.com> domain name because Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to use the KLIM mark. The WHOIS information for <klimvendita.com> lists the registrant as “Lanying Han.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant contends that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, because it uses the domain name to mimic Complainant’s website and to compete with Complainant. Complainant provides evidence showing that the disputed domain name resolves to a site featuring the KLIM mark, and the same color scheme and layout as Complainant’s site, and appears to offer KLIM-branded products for sale. The Panel finds that none of these uses constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the <klimvendita.com> domain name, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii). See Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”); see also Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <klimvendita.com> domain name in bad faith by diverting Internet traffic to Respondent’s competing site. The Panel agrees and finds bad faith disruption of Complainant’s business under Policy ¶ 4(b)(iii). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum January 9, 2018) (finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)).
Complainant also argues that Respondent is trading off of Complainant’s goodwill in the KLIM mark, deceiving customers through a site that impersonates Complainant’s for commercial gain. Using a disputed domain name to attract Internet traffic to a site that passes off as associated with a complainant evinces bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See Carey Int’l, Inc. v. Kogan, FA 486191 (Forum July 29, 2005) (“[T]he Panel finds that Respondent is capitalizing on the confusing similarity of its domain names to benefit from the valuable goodwill that Complainant has established in its marks. Consequently, it is found that Respondent registered and used the domain names in bad faith under Policy ¶ 4(b)(iv).”) Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iv).
Complainant claims that Respondent had actual knowledge of Complainant’s rights in the KLIM mark when it registered <klimvendita.com>. Actual knowledge of a complainant’s rights has been found to adequately support a finding of bad faith pursuant under Policy ¶ 4(a)(iii). The Panel notes that Respondent uses the <klimvendita.com> domain name to mimic Complainant’s website and purport to sell KLIM products, demonstrating that it had actual knowledge of Complainant’s rights in the KLIM mark, which constitutes bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”)
The Panel finds that 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 <klimvendita.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 11, 2023
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