DECISION

 

ARAMARA BEAUTY LLC DBA GLOW RECIPE v. Chen Long

Claim Number: FA2309002063017

 

PARTIES

Complainant is ARAMARA BEAUTY LLC DBA GLOW RECIPE ("Complainant"), represented by Matthew P. Hintz of Lowenstein Sandler LLP, New Jersey, USA. Respondent is Chen Long ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <glowrecipeus.com>, registered with Jiangsu Bangning Science & technology Co. Ltd.

 

PANEL

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.

 

Debrett G. Lyons as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 22, 2023; Forum received payment on September 22, 2023.

 

On September 27, 2023, Jiangsu Bangning Science & technology Co. Ltd. confirmed by e-mail to Forum that the <glowrecipeus.com> domain name is registered with Jiangsu Bangning Science & technology Co. Ltd. and that Respondent is the current registrant of the name. Jiangsu Bangning Science & technology Co. Ltd. has verified that Respondent is bound by the Jiangsu Bangning Science & technology Co. 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 September 29, 2023, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of October 19, 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@glowrecipeus.com. Also on September 29, 2023, the Chinese and English 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 in Chinese and English.

 

On October 20, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING

The Complaint was submitted in English. Forum sent a formal Deficiency Notice to Complainant stating, inter alia, that:

 

"Pursuant to verification received from the Registrar, the Registration agreement is in Chinese. You have two options: 1. Translate the Complaint and Table of Contents into Chinese, or 2. Modify the complaint to explain why Respondent is capable of understanding English and therefore, the proceedings should be conducted in English."  

 

Complainant chose to amend the Complaint, stating rather dismissively that "[n]o translation to Chinese is required…", going on to submit that:

 

Respondent can understand English. The Disputed Domain Name resolves to a website entirely in English, contains material copied from Complainant's English-language website, and offers goods for sale in American dollars.

 

Respondent has targeted a United States company and the website at the Disputed Domain Name clearly shows an intention to promote products to a largely English-speaking audience.

 

To translate the relevant papers into Chinese, if Chinese remains the language of the proceeding, is unnecessary and will involve considerable expense and inconvenience to Complainant, while having little to no benefit to Respondent. Accordingly, the proceeding should be conducted in English.

 

As is common, the reasoning falls short of a compelling case that Respondent is proficient in English and could compose a Response and take part in these proceedings in English. Nevertheless, as has been noted in many earlier cases, the bar has been set very low for this language requirement. Paragraph 11(a) of the Rules provides that "the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding" (added emphasis). Given this broad power I am inclined to find that the proceedings should continue in English. The evidence of bad faith which follows and the fact that Respondent has shown no sign of defending its position inclines the Panel to take the view that it is an unnecessary burden for the Complaint to be translated into Chinese and the proceedings recommenced.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant asserts trademark rights in Glow Recipe and submits that the disputed domain name is confusingly similar to its trademark. 

 

Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.

 

Complainant alleges that Respondent registered and used the disputed domain name in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The factual findings pertinent to the decision in this case are that:

1.                      Complainant does business under the name, Glow Recipe, selling beauty products;

2.                      Complainant owns, inter alia, United States Patent & Trademark Office ("USPTO") Reg. No. 4,755,299, registered on June 16, 2015, for the trademark, Glow Recipe;

3.                      Respondent created the disputed domain name on July 18, 2023, using a privacy service to conceal its identity;

4.                      the domain name resolves to a website which slavishly copies Complainant's website, using the trademark, and offering beauty products for sale; and

5.                      there is no association between the parties and Complainant has not authorized Respondent to use its trademark or register any domain name incorporating its trademark.

 

DISCUSSION

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 based on 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.  

 

Identical and/or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.

 

It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights.¹  Complainant therefore has rights in Glow Recipe since it provides proof of its registration of that trademark with the USPTO, a national trademark authority.  

  

For the purposes of comparison of the domain name with the trademark, the gTLD ".com" can be disregarded. Thereafter, the domain name takes the trademark to which it appends the country name abbreviation, "US". The additions are of no distinctive value and the trademark remains the recognizable part of the domain name. As such, the Panel finds the name to be confusingly similar to the trademark.² 

 

The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

 

Rights or Legitimate Interests

Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:

 

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;  or

 

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights;  or

 

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

 

Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests.³ 

 

The name of the underlying domain name holder, as disclosed by the Registrar, does not provide any indication that Respondent might be commonly known by the domain name.

 

There is no evidence that Respondent has any trademark rights.  Complainant states that there is no association between the parties and Respondent has no authority to use the trademark.

 

Complainant provides screenshots of the resolving website which displays Complainant's exact product images. Complainant states that the goods offered for sale are either counterfeit or unauthorized.  

 

Whether the goods are copies, or genuine goods being put on the market without Complainant's approval, makes no difference since the Panel finds in either case that Respondent has no rights or legitimate interests in the disputed domain name. Clearly the sale of counterfeit products does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name under the Policy.⁴  Alternatively, the trademark has been used without permission and Respondent has not shown itself to be an authorized re-seller of Complainant's branded goods.⁵  

 

The onus shifts to Respondent and, in the absence of a Response, Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

Complainant must prove on the balance of probabilities both that the domain name was registered in bad faith and used in bad faith.  

 

The Panel has already found confusing similarity between the domain name and the trademark. That confusion attracts Internet users to an online location intended for commercial gain. Paragraph 4(b)(iv) of the Policy circumscribes registration and use of a domain name in bad faith as follows:

 

(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent's website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on the site or location.

 

The Panel finds that paragraph 4(b)(iv) of the Policy has direct application to this case and so finds that the third and final element of the Policy is satisfied.⁶

 

Panel finds that Complainant has satisfied the third and final element of the Policy.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <glowrecipeus.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Debrett G. Lyons, Panelist

Dated: October 22, 2023