DECISION

 

Backcountry.com, LLC v. Hong camp

Claim Number: FA2501002134816

 

PARTIES

Complainant is Backcountry.com, LLC ("Complainant"), represented by Craig A. Beaker of Holland & Hart LLP, Colorado, USA. Respondent is Hong camp ("Respondent"), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <backcty.com> ('the Domain Name'), registered with West263 International Limited.

 

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 January 13, 2025; Forum received payment on January 13, 2025.

 

On January 13, 2025, West263 International Limited confirmed by e-mail to Forum that the <backcty.com> Domain Name is registered with West263 International Limited and that Respondent is the current registrant of the name. West263 International Limited has verified that Respondent is bound by the West263 International Limited 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 January 15, 2025, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of February 4, 2025 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@backcty.com. Also on January 15, 2025, 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 February 5, 2025 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 Name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING

Bearing in mind that the Domain Name points to a commercial site which is mostly in the English language, pursuant to UDRP Rule 11 (a) the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language and the Panel decides that the proceedings should be in English.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant owns the trade marks BACKCOUNTRY and BACKCOUNTRY.COM registered, inter alia, in the USA for clothing and outdoor recreation related goods and services since 2015.

 

The Domain Name registered in 2024 is confusingly similar to the Complainant's trade marks consisting or containing an abbreviation of them and/or adding the gTLD .com neither of which prevents said confusing similarity between the Domain Name and the Complainant's marks.

 

Respondent is not commonly known by the Domain Name and is not authorised by the Complainant.

 

The web site connected with the Domain Name used the Complainant's BACKCOUNTRY mark in full with the Complainant's logo as a masthead, the Complainant's address and material taken from the Complainant's site to purport to be an official site of the Complainant. Since Internet users would have been confused into believing the Respondent's site is associated with the Complainant this is not a legitimate bona fide offering of goods or services or legitimate fair non commercial use. It is registration and use in opportunistic bad faith to confuse customers for commercial gain in actual knowledge of the Complainant's rights. The Respondent has been the subject of another adverse decision under the UDRP showing a pattern of bad faith activity.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant owns the trade marks BACKCOUNTRY and BACKCOUNTRY.COM registered, inter alia, in the USA for clothing and outdoor recreation related goods and services since 2015.

 

The Domain Name registered in 2024 used the Complainant's BACKCOUNTRY mark in full with the Complainant's logo as a masthead, the Complainant's address, and material taken from the Complainant's site to purport to be an official site of the Complainant. The Respondent has been the subject of another adverse decision under the UDRP.

 

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 Domain Name consists of an abbreviation of the Complainant's marks (which are registered, inter alia, in the USA for clothing and outdoor recreation related goods and services since 2015) and/or the gTLD .com.

 

The Panel agrees that an abbreviation such as 'cty' for 'country' in the Complainant's marks does not distinguish the Domain Name from the Complainant's trade marks pursuant to the Policy. See Black Hills Ammunition, Inc. v. ICS INC, FA 1541572 (Forum Mar. 4, 2014) (finding that the <black-hillsammo.com> domain name is confusingly similar to the BLACK HILLS AMMUNITION mark under Policy ¶ 4(a)(i)).

 

The gTLD .com does not serve to distinguish a Domain Name from a Complainant's mark. 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 Name is confusingly similar to the Complainant's registered marks.

 

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

 

Rights or Legitimate Interests

The Respondent is not authorized by the Complainant and is not commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 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 of the Domain Name is commercial and so it not legitimate non commercial or fair use.

 

The Domain Name used the Complainant's BACKCOUNTRY mark (spelled correctly in full) with the Complainant's logo as a masthead, the Complainant's address, and material taken from the Complainant's site to purport to be an official site of the Complainant. The site did not make it clear that there was no commercial connection with the Complainant. The Panel finds this use was confusing and deceptive. As such it could not 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).

 

The Respondent has not answered this Complaint and has not rebutted the prima facie case evidenced by the Complainant herein.

 

As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

In the opinion of the panelist the use made of the Domain Name in relation to the Respondent's site was confusing and disruptive in that visitors to the site might reasonably have believed it was connected to or approved by the Complainant as it used the Complainant's BACKCOUNTRY mark in full with the Complainant's logo as a masthead, the Complainant's address, and material taken from the Complainant's site to purport to be an official site of the Complainant.

 

Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site 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 Panel also notes the adverse decision against the Respondent in another UDRP case indicating a pattern of bad faith activity. See Twentieth Century Fox Film Corporation v. oranges arecool XD / orangesarecool.com, FA 1558045 (Forum July 10, 2014) (finding that the prior adverse UDRP history was evidence of bad faith registration and use under Policy ¶ 4(b)(ii)).

 

As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 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 <backcty.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: February 5, 2025