DECISION

 

Carve Designs, Inc. v. weirong wei

Claim Number: FA2310002067766

 

PARTIES

Complainant is Carve Designs, Inc. ("Complainant"), represented by H. Straat Tenney of Locke Lord LLP, New York, USA. Respondent is weirong wei ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <thecarve-designs.com>, registered with Name.com, Inc.

 

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.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 25, 2023; Forum received payment on October 25, 2023.

 

On October 26, 2023, Name.com, Inc. confirmed by e-mail to Forum that the <thecarve-designs.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 October 27, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 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@thecarve-designs.com. Also on October 27, 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 17, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends as follows:

 

Complainant offers a range of apparel, casual wear, bags, water bottles, towels, and accessories.

 

Complainant has multiple trademark registrations for CARVE DESIGNS worldwide including with the USPTO. Complainant operates a website at <carvedesigns.com> and uses @carvedesigns as a username on multiple platforms.

 

Respondent's domain name addresses a website that is an exact copy of Complainant's genuine website and includes Complainant's design marks. The website purports to sell Complainant's genuine products but does not deliver goods after receiving funds from putative purchasers. Respondent is not authorized to use any of Complainant's marks or offer Complainant's products for sale.

 

The at-issue domain name is confusingly similar to Complainant's CARVE DESIGNS trademark as the domain name consists of Complainant's entire mark with the mark's impermissible space replaced by a hyphen, prefixed with term "the" and with an irrelevant ".com" top-level added to all.

 

Respondent lacks rights and legitimate interests in the domain name. Respondent was never authorized to use Complainant's trademarks. Respondent cannot establish it has any rights or legitimate in the at-issue domain name under Policy ¶ 4(c). Respondent has never made a bona fide use of the domain name nor is it commonly known by the at-issue domain name.

 

The at-issue domain name has been registered and used in bad faith. Respondent uses the domain name to attracted internet users interested in CARVE DESIGNS for Respondent's commercial gain. Respondent uses the at-issue domain name to direct internet user to an exact copy of Complainant's genuine website and the uses the website to swindle visitors who falsely believe they are dealing with Complainant. Respondent knew of Complainant's rights in the CARVE DESIGNS trademark when it registered <thecarve-designs.com>.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the CARVE DESIGNS trademark.

 

Respondent is not affiliated with Complainant and had not been authorized to use Complainant's trademarks in any capacity.

 

Respondent registered the at‑issue domain name after Complainant acquired rights in the CARVE DESIGNS trademark.

 

Respondent uses the at-issue domain name and referenced website to pass itself off as Complainant and swindle third parties who believe they are dealing with Complainant.

 

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

The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.

 

Complainant shows that it has USPTO registrations, along with other national trademark registrations, for its CARVE DESIGNS trademark. Any of such registrations is sufficient to demonstrate Complainant's rights in the CARVE DESIGNS mark under Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) ("Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world."); see also Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) ("The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.").

 

Respondent's at-issue domain name contains a recognizable version of Complainant's CARVE DESIGNS trademark where the mark's impermissible space is replaced by a hyphen. The trademark variant is prefixed with the article "the" and the domain name concludes with the ".com" top-level domain name. The differences between the at-issue domain name and Complainant's CARVE DESIGNS trademark are insufficient to distinguish the at-issue domain name from CARVE DESIGNS for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent's <thecarve-designs.com> domain name is confusingly similar to the CARVE DESIGNS trademark. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognizable 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, Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) ("A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.").

 

Rights or Legitimate Interests

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. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant's prima facie showing acts conclusively.

 

Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant's trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or legitimate interests in respect of the at-issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) ("lack of evidence in the record to indicate a respondent is authorized to use [the] complainant's mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)").

 

The WHOIS information for <thecarve-designs.com> indicates that "weirong wei" is the domain name's registrant and there is nothing in the record showing that Respondent is otherwise known by the <thecarve-designs.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(iii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

Respondent uses <thecarve-designs.com> to address an exact copy of Complainant's genuine website and there Respondent purports to offer Complainant's products for sale. While Respondent may receive payment for such products, it fails to deliver any products. Such use of the domain name is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See Zapier, Inc. v. MIRNA ALVARDO, No. FA 2050410 (Forum July 26, 2023) (finding lack of rights or interests where respondent used domain name to defraud consumers).

 

Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent's lack of rights and lack of legitimate interests in respect of the at-issue domain name.

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, circumstances are present which allow the Panel to conclude that Respondent acted in bad faith regarding the at-issue domain name pursuant to the Policy.

 

Respondent misappropriates Complainant's trademark to use in its domain name and associated website to pass itself off as Complainant. Respondent's intent is to attract consumers who believe they will be dealing with Complainant to Respondent's copied website so that Respondent might then swindle payments for products that Respondent will never deliver. Respondent's use of the at-issue domain name to defraud consumers disrupts Complainant's business and shows Respondent's bad faith registration and use of the at-issue domain name pursuant to Policy ¶¶ 4(b)(iii) and/or (iv). See Funding Circle Limited v. tim mcelwain / timmcelweain, FA 2003934 (Forum Aug. 4, 2022) ("Respondent uses the at-issue domain name to facilitate [a] phishing scheme designed to swindle funds from Complainant's customers. Such use of the confusingly similar domain name indicates Respondent's bad faith under the Policy.").

 

Moreover, Respondent registered the at-issue domain name knowing that Complainant had trademark rights in the CARVE DESIGNS trademark. Respondent's prior knowledge is evident given CARVE DESIGNS' notoriety and given that Respondent uses the at-issue domain name to pass itself off as Complainant by addressing a website that is an exact copy of Complainant's genuine website. It is thus inconceivable that Respondent was unaware of CARVE DESIGNS when it registered the at-issue domain name. Respondent's prior knowledge of Complainant's trademark rights further indicates that Respondent registered and used the at-issue domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").

 

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 <thecarve-designs.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: November 19, 2023