Sheltered Wings, Inc. DBA Vortex Optics v. lei zhou
Claim Number: FA2306002048648
Complainant is Sheltered Wings, Inc. DBA Vortex Optics (“Complainant”), represented by Corsearch, Inc., Texas, USA. Respondent is lei zhou (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <vortexoptics.us.org>, (‘the Domain Name’) registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant participated in the mandatory CentralNic Mediation, and the mediation process was terminated.
Complainant submitted a Complaint to Forum electronically on June 12, 2023; Forum received payment on June 12, 2023.
On June 14, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <vortexoptics.us.org> 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 CentralNic Dispute Resolution Policy (the “CDRP Policy”).
On June 14, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 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@vortexoptics.us.org. Also on June 14, 2023, 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 July 13, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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 to the CDRP Dispute Resolution Policy (the "Rules"). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the CDRP Policy, CDRP 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
The Complainant owns the trade mark VORTEX registered, inter alia, in the USA for hunting and military equipment and clothing with first use recorded as 2003.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s trade mark containing it in its entirety and merely adding the generic term ‘optics’ (reflecting the Complainant’s D.B.A. name) and the designation us.org which do not prevent said confusing similarity between the Domain Name and the Complainant’s mark.
Respondent is not commonly known by the Domain Name and is not authorised by the Complainant.
The Respondent’s website mimics the Complainant’s official website featuring a similar header in green with links to subpages in white font, the Complainant’s VORTEX mark and its VTX logo in the masthead and a footer in black with white font including the VTX VIP Warranty device with the title: “Vortex Optics | Us Official Website”. The footer mentions: “© 2023 Vortex Optics All rights reserved.”
The site is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to “provide a means for sites to earn advertising fees by advertising and linking to Amazon.com.”
The Website contains images of the Complainant’s products, however does not actually offer the Complainant’s products for sale. Internet users are redirected, through affiliate links, to Amazon.com where the products can be purchased.
Since Internet users will be duped into believing the site attached to the Domain Name is a site connected with the Complainant this is not legitimate. This is registration and use in bad faith confusing and diverting Internet users for commercial gain. The use of the Complainant’s logo and trade dress shows the Respondent had actual knowledge of the Complainant, its rights, business and services. The Complainant is worried about phishing as the Domain Name has been configured for e mail.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trade mark VORTEX registered, inter alia, in the USA for hunting and military equipment and clothing with first use recorded as 2003.
The Domain Name registered in 2022 has been used for a site mimicking the Complainant’s web site using the Complainant’s VORTEX mark and VTX logo in its masthead and the word ‘official’ on the web site.
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.
The CDRP also requires that Complainant have paricipated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CDRP 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 Domain Name consists of the Complainant’s VORTEX mark (registered, inter alia in the USA for hunting and military equipment and clothing since 2003), the generic term ‘optics’ and the designation ‘us.org’.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic term ‘optics’ does not prevent confusing similarity between the Domain Name and the Complainant's registered trade mark.
The addition of the ccTLD .us and the gTLD .org does not serve to distinguish the Domain Name from the Complainant’s mark, which is the distinctive component of the Domain Name. See Dansko, LLC v. zhang wu, FA 1757745 (Forum Dec. 12, 2017) (finding the <danskoshoes.us.com> domain name to be confusingly similar to the DANSKO mark despite the addition of the “.us” ccTLD and the “.com” gTLD).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the CDRP Policy to a mark in which the Complainant has rights.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use is commercial and so cannot be non commercial legitimate fair use.
The web site attached to the Domain Name uses the Complainant's VORTEX mark and logo in its masthead and the word ‘official’ on the web site to suggest that it is an official site of the Complainant when it is not. The Panel finds this use is deceptive and confusing. As such it cannot amount to the bona fide offering of goods and services. (See Am. Intl Group Inc v Benjamin FA 944242 (Nat. Arb. Forum May 11, 2007) finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.).
The Respondent has not answered the Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration or Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it uses the Complainant’s mark and logo as a masthead and the word ‘official’ on the web site giving the impression that the site attached to the Domain Name is a site connected with the Complainant when it is not. The use of the Complainant’s logo and trade dress and the reference to the Complainant’s products on the site shows that the Respondent has actual knowledge of the Complainant and its business, products and rights.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant. See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the CDRP Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <vortexoptics.us.org> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: July 13, 2023
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