DECISION

 

Clarisse, Inc. v. Jiarong Huo

Claim Number: FA2310002068926

 

PARTIES

Complainant is Clarisse, Inc. ("Complainant"), represented by Susan Goldsmith of McCarter & English, LLP, New Jersey, USA. Respondent is Jiarong Huo ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <gownsclarisse.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 31, 2023; Forum received payment on October 31, 2023.

 

On November 1, 2023, Name.com, Inc. confirmed by e-mail to Forum that the <gownsclarisse.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 November 3, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 24, 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@gownsclarisse.com. Also on November 3, 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 26, 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, Clarisse, Inc. is a successful and well-known designer and manufacturer of women's gowns and other formal wear, including prom, bridal, and special occasion dresses and accessories.

 

Complainant has registered the CLARISSE trademark with the USPTO and other registrars worldwide.

 

Respondent's domain name is confusingly similar to the CLARISSE mark as the domain name merely adds the suggestive term "gowns" to Complainant's trademark to form the domain name.

 

Respondent lacks rights and legitimate interests in the at-issue domain name. Respondent is not authorized to use Complainant's trademark in any capacity. Respondent is not known by <gownsclarisse.com> and has never used the at-issue domain name for a bona fide offering of goods or services or making a legitimate non-commercial or fair use of the domain name. Instead, Respondent is using the domain name to copy many elements of Complainant's <Clarisse.com> website including copyrighted photos, and incorporate such material into a website addressed by the at-issue domain name. There, Respondent offers gowns well below Complainant's standard pricing. The gowns offered by Respondent on the <gownsclarisse.com> website are either counterfeit or non-existent and thus indicate a phishing site. The site also displays bogus contact information.

 

Respondent makes false claims of copyright in Complainant's material on the <gownsclarisse.com> website. Respondent had actual knowledge of Complainant's rights in CLARISSE when it registered <gownsclarisse.com>. The domain name and its referenced website falsely designate the origin of goods offered for sale on such website so as to deceive prospective customers.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has trademark rights in the CLARISSE mark.

 

Respondent registered the at-issue domain name after Complainant acquired rights in CLARISSE.

 

Complainant's has not authorized Respondent to use Complainant's trademark.

 

Respondent uses the at-issue domain name to mimic Complainant's genuine website in furtherance of fraud.

 

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 identical to a trademark in which Complainant has rights.

 

Complainant shows that it has a USPTO registration and other national trademark registrations worldwide for its CLARISSE trademark. Any of such registrations is sufficient to demonstrate Complainant's rights in the CLARISSE mark under Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 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 <gownsclarisse.com> domain name contains Complainant's CLARISSE trademark prefixed with the suggestive term or terms "gown" with all followed by the ".com" top-level domain name. The differences between Complainant's trademark and Respondent's domain name are insufficient to distinguish one from the other for the purposes of the Policy. In fact, the domain name's included term "gown" suggests Complainant's formal wear product line. Therefore, the Panel finds that Respondent's <gownsclarisse.com> domain name is confusingly similar to Complainant's CLARISSE trademark under Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)).

 

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 interests in respect of the at-issue domain name. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and "Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.").

 

The WHOIS information for <gownsclarisse.com> indicates that "Jiarong Huo" is the domain name's registrant and there is nothing in the record that tends to prove that Respondent is otherwise known by the <gownsclarisse.com> domain name. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(ii). 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 the confusingly similar <gownsclarisse.com> domain name to address a website that mimics Complainant's genuine website. There, Respondent offers gowns which are either counterfeit or non-existent. Respondent's use of <gownsclarisse.com> in this manner is neither 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 Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant's mark and various photographs related to the complainant's business); see also, Wolverine World Wide, Inc. v. Fergus Knox, FA 1627751 (Forum Aug. 19, 2015) (finding no bona fide offering of goods or legitimate noncommercial or fair use existed where Respondent used the resolving website to sell products branded with Complainant's MERRELL mark, and were either counterfeit products or legitimate products of Complainant being resold without authorization).

 

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, bad faith circumstances are present which lead the Panel to conclude that Respondent acted in bad faith pursuant to the Policy.

 

Respondent's at-issue domain name addresses Respondent's <gownsclarisse.com> website. The website mimics Complainant's genuine website and lets Respondent deceive internet users into falsely believing that the domain name and its referenced website are sponsored by Complainant. Notably, Respondent's <gownsclarisse.com> website promotes and purports to offer gowns which are either counterfeit or non-existent. Respondent's use of <gownsclarisse.com> is disruptive to Complainant's business and designed to attract internet users so that Respondent may capitalize on the confusion it created between its <gownsclarisse.com> domain name and Complainant's CLARISSE trademark. Respondent's use of the <gownsclarisse.com> domain name and its website demonstrates Respondent's bad faith registration and use of <gownsclarisse.com> under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent's registration and use of the at-issue domain name, which displayed a website virtually identical to the complainant's website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also, ZIH Corp. v. ou yang lin q, FA 1761403 (Forum Dec. 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant's business by diverting Internet users from Complainant's website to Respondent's website where it offered competing printer products); see also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting internet users searching for the complainant to its own website and likely profiting). Respondent is using the domain name to perpetuate a phishing scheme intent on defrauding third parties into purchasing or more likely going through the motions to purchase products on Respondent's copycat website. 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 had actual knowledge of Complainant's rights in the CLARISSE mark when Respondent registered <gownsclarisse.com> as a domain name. Respondent's actual knowledge is evident given the mark's notoriety and given Respondent's use of the domain name to pass itself off as Complainant using a mimicked version of Complainant genuine website. 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 <gownsclarisse.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: November 28, 2023