DECISION

 

The Pillow Collection, Inc., KharmaCo Inc., and Boston Ecommerce Group, Inc. v. Eric VanNockay / Angel Nieves / Christina Darin

Claim Number: FA2310002065479

PARTIES

Complainant is The Pillow Collection, Inc., KharmaCo Inc., and Boston Ecommerce Group, Inc. ("Complainant"), represented by Joshua M. Dalton of Morgan, Lewis & Bockius LLP, Massachusetts, USA. Respondent is Eric VanNockay / Angel Nieves / Christina Darin ("Respondent"), USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <thepillowcollection.shop>, <loomdecor.shop>, <dharmacrafts.shop> and <clothandstitch.shop>, ('the Domain Names') registered with PDR Ltd. d/b/a PublicDomainRegistry.com.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 9, 2023; Forum received payment on October 9, 2023.

 

On October 10, 2023, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to Forum that the <thepillowcollection.shop>, <loomdecor.shop>, <dharmacrafts.shop> and <clothandstitch.shop> Domain Names are registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 11, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 31, 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@thepillowcollection.shop, postmaster@loomdecor.shop, postmaster@dharmacrafts.shop, postmaster@clothandstitch.shop. Also on October 11, 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 November 1, 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 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.

 

PRELIMINARY ISSUES:

 

A.       MULTIPLE COMPLAINANTS

In the instant proceedings, there are three Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") provides that "[a]ny person or entity may initiate an administrative proceeding by submitting a complaint." Forum's Supplemental Rule 1(e) defines "The Party Initiating a Complaint Concerning a Domain Name Registration" as a "single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint." The Complainants are related businesses based at the same address with the same owners. The Panel finds that the Complainants have satisfied the nexus required.

 

B.       MULTIPLE RESPONDENTS

In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") provides that a "complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder." The Domain Names point to similar web sites identically laid out using the same font as a masthead. The Respondent has not answered this Complainant or challenged the assertions that the Domain Names are all held by the same entity. The Panel finds it more likely than not that the Domain Names have been registered by the same Respondent and this Complaint may proceed against all of the Domain Names.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant owns the trademarks CLOTH AND STITCH, DHARMACRAFTS, LOOM DECOR and THE PILLOW COLLECTION registered, in the USA for textiles and/or meditation materials with first use recorded as 2018, 1979, 2012 and 2018 respectively. It owns clothandstitch.com, dharmacrafts.com, loomdecor.com and thepillowcollection.com

 

The Domain Names registered in 2023 are each confusingly similar to one of the Complainant's trade marks each containing one of the Complainant's marks in its entirety and merely adding the gTLD ".shop" which do not prevent said confusing similarity between each of those Domain Names and the Complainant's marks respectively.

 

Respondent is not commonly known by the Domain Names and is not authorized by the Complainant. The four web sites connected with the Domain Names purport to sell the Complainant's products each using one of the Complainant's four trademarks as a masthead. Since Internet users will be and have been duped into believing the sites attached to the Domain Names are official sites of the Complainant this is not legitimate. It is registration and use in bad faith confusing and diverting Internet users for commercial gain. There is evidence that consumers have been confused into putting their financial details into the site following which they get an error message once the details have been taken, which is obvious phishing. The reference to and images of the Complainant's products on the Respondent's sites shows the Respondent had actual knowledge of the Complainant, its rights, business and services. 

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant owns the trade mark CLOTH AND STITCH, DHARMACRAFTS, LOOM DECOR and THE PILLOW COLLECTION registered, in the USA for textiles and/or meditation materials with first use recorded as 2018, 1979, 2012 and 2018 respectively.

 

The Domain Names registered in 2023 have each been pointed to one of four sites purporting to sell the Complainant's products each using one of the Complainant's four trademarks as a masthead. There is evidence that consumers have been confused into putting their financial details into the sites and get an error message once the details have been taken indicating phishing.    

 

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 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").

 

Identical and/or Confusingly Similar

 

clothandstitch.shop consists of the Complainant's CLOTH AND STITCH mark (which is registered in the USA for textiles and has been used since 2018) and the gTLD ".shop".

 

Dharmacrafts.shop consists of the Complainant's DHARMACRAFTS mark (which is registered in the USA for meditation products and has been used since 1979) and the gTLD ".shop".

 

Loomdecor.shop consists of the Complainant's LOOM DECOR mark (which is registered in the USA for textiles and has been used since 2012) and the gTLD ".shop".

 

The pillow collection.shop consists of the Complainant's THE PILLOW COLLECTION mark (which is registered in the USA for textiles and has been used since 2018) and the gTLD ".shop".

 

The gTLD ".shop" does not serve to distinguish any of the Domain Names from the Complainant's marks, one of which is the distinctive component of each domain name in this Complaint. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel holds that the Domain Names are each identical for the purpose of the Policy to a mark in which the Complainant has rights.

 

As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.

 

 Rights or Legitimate Interests

 

The Complainant has not authorized the use of its marks. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by any of the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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 noncommercial legitimate fair use.

 

The web sites attached to the Domain Names each use one of the Complainant's marks as a masthead to suggest that they are official sites of the Complainant when they are 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 (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.)

 

Customers have been deceived into putting their financial details into the sites when they get an error message suggesting obvious phishing. (See DaVita Inc. v Cynthia Rochelo FA 1738034 (Forum July 20, 2017) finding that 'Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use'.)

 

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 Names and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

 

Customers have been deceived into putting their financial details into the Respondent's sites when they get an error message suggesting obvious phishing. Phishing conduct is evidence of bad faith registration and use within the Policy 4 (a)(iii). See Klabzuba Oil & Gas, Inc v LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015).

 

Further in the opinion of the panelist the use made of the Domain Names in relation to the Respondent's sites is confusing and disruptive in that visitors to the sites might reasonably believe and have believed that the sites are connected to or approved by the Complainant as they purport to offer the Complainant's products under one of the Complainant's marks used as a masthead giving the impression that the sites attached to each of the Domain Names are official. The reference to the Complainant's products on the sites 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 websites by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web sites 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).

 

The Respondent has also registered several domain names containing different marks of the Complainant suggesting a pattern of bad faith activity. See Twentieth Century Fox Film Corporation v. oranges arecool XD / orangesarecool.com, FA1405001558045 (Forum July 10, 2014) (finding that the respondent's registration of multiple domain names in the instant proceeding was evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(ii)).

 

As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(ii), (iii) and (iv).

 

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 <thepillowcollection.shop>, <loomdecor.shop>, <dharmacrafts.shop> and <clothandstitch.shop> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Dawn Osborne, Panelist

Dated: November 2, 2023