DECISION

 

BDSRCO, Inc. v. li na

Claim Number: FA2310002064356

 

PARTIES

Complainant is BDSRCO, Inc. ("Complainant"), United States, represented by Paul W. Kruse of Spencer Fane LLP, Tennessee, USA. Respondent is li na ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <bealls-outlet-near-me.com> and <bealls-outlet.com>, registered with Sav.com, LLC.

 

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.

 

David E. Sorkin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 2, 2023; Forum received payment on October 2, 2023.

 

On October 2, 2023, Sav.com, LLC confirmed by email to Forum that the <bealls-outlet-near-me.com> and <bealls-outlet.com> domain names are registered with Sav.com, LLC and that Respondent is the current registrant of the names. Sav.com, LLC has verified that Respondent is bound by the Sav.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 October 3, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 23, 2023 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registrations as technical, administrative, and billing contacts, and to postmaster@bealls-outlet-near-me.com and postmaster@bealls-outlet.com. Also on October 3, 2023, the Written Notice of the Complaint, notifying Respondent of the email 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 registrations as technical, administrative, and billing contacts.

 

Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.

 

On October 24, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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 names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant has used BEALLS in connection with retail department store services since at least as early as 1946. Complainant owns United States trademark registrations for BEALLS in standard character and stylized form, and for related marks including BEALLS OUTLET.

 

The disputed domain names <bealls-outlet-near-me.com> and <bealls-outlet.com> were registered in March 2022. The domain names are registered to Respondent, although Respondent's identity is redacted from the public whois records. The domain names redirect to a website that displays the BEALLS OUTLET mark and other marks owned by Complainant, and offers or purports to offer for sale merchandise similar to that offered by Complainant. Complainant states that Respondent is not commonly known by the disputed domain names and is not authorized to use Complainant's marks.

 

Complainant contends on the above grounds that the disputed domain names <bealls-outlet-near-me.com> and <bealls-outlet.com> are confusingly similar to its BEALLS and BEALLS OUTLET marks; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").

 

Identical and/or Confusingly Similar

The disputed domain name <bealls-outlet.com> corresponds to Complainant's registered BEALLS OUTLET trademark, substituting a hyphen for the space and appending the ".com" top-level domain. The other disputed domain name, <bealls-outlet-near-me.com>, adds additional hyphens and the generic term "near me." These alterations and additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Tanger Properties, L.P. North Carolina L.P. v. Ma Zhong Qing, FA 1994455 (Forum July 7, 2022) (finding <tangeroutletnearme.com> confusingly similar to TANGER OUTLETS); Tanger Properties, L.P. North Carolina L.P. v. Zhong Qing Ma, FA 1994703 (Forum May 27, 2022) (finding <tanger-outlets.com> confusingly similar to TANGER and TANGER OUTLETS); Bealls, Inc. v. Manila Industries, FA 882165 (Forum Feb. 20, 2007) (finding <beallsoutlets.com> confusingly similar to BEALLS OUTLET). The Panel considers each of the disputed domain names to be identical or confusingly similar to a mark in which Complainant has rights.

 

Rights or Legitimate Interests

Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).

 

The disputed domain names incorporates Complainant's registered marks without authorization and are being used to redirect users to a website that displays Complainant's marks and offers goods similar to those offered by Complainant. Such use does not give rise to rights or interests under the Policy. See, e.g., Tanger Properties, L.P. North Carolina L.P. v. Zhong Qing Ma, supra (finding lack of rights or interests in similar circumstances); Bealls, Inc. v. Manila Industries, supra (same).

 

Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.

 

Registration and Use in Bad Faith

Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."

 

Respondent registered two domain names incorporating Complainant's registered mark, and is using them to redirect to a website that displays Complainant's marks and offers similar goods. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Tanger Properties, L.P. North Carolina L.P. v. Zhong Qing Ma, supra (finding bad faith registration and use in similar circumstances); Bealls, Inc. v. Manila Industries, supra (same). The Panel so finds.

 

DECISION

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

 

Accordingly, it is Ordered that the <bealls-outlet-near-me.com> and <bealls-outlet.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

David E. Sorkin, Panelist

Dated: October 25, 2023