DECISION

 

Beauty Holding LLC v. tu ran

Claim Number: FA2501002137559

PARTIES

Complainant is Beauty Holding LLC ("Complainant"), represented by Andrea Shannon of Norton Rose Fulbright US LLP, Texas, USA. Respondent is tu ran ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

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

 

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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 29, 2025; Forum received payment on January 29, 2025.

 

On January 30, 2025, Name.com, Inc. confirmed by e-mail to Forum that the <the-bondbar.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 January 30, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 19, 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@the-bondbar.com. Also on January 30, 2025, 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 February 20, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 states that it is the largest distributor of professional beauty products in the U.S. based on store count. The company was founded more than 50 years ago, and it currently employs 27,000 fulltime and part-time individuals working in 11 countries. It has over 4,000 stores worldwide and made over $3.7 billion in sales in 2023. Complainant's brands include ion, Freewill, Clairol Professional, Salon Care, Artic Fox, and many others. In January 2024, it began using the BONDBAR Mark in connection with hair care preparations; hair colorants; hair dyes; hair coloring preparations; hair conditioner; hair bleaching preparations; liquid hair shampoo; and hair styling preparations. Complainant prominently advertises the BONDBAR mark on its website, in stores, on its social media channels, and in print media. Complainant asserts rights in the mark BONDBAR through its registration in the United States on June 4, 2024, filing date April 8, 2022.

 

Complainant alleges that the disputed domain name is identical or confusingly similar to its BONDBAR mark as it incorporates the mark in its entirety and merely adds a hyphen and the generic term "the" along with the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its mark in any way. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to direct users to its counterfeit website that is designed to look like it originates from Complainant: it displays Complainant's mark and logo, and images of Complainants products. But the resolving website actually offers competing services and what appears to be counterfeit merchandise. The services compete with the legitimate products and services offered by Complainant, and visitors to Respondent's site are likely to believe that the services offered thereon originate with the Complainant, thereby interrupting Complainant's business.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to pass off as Complainant and offer competing or counterfeit products. Respondent had actual knowledge of Complainant's mark when it registered the disputed domain name.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark BONDBAR and uses it to distribute professional beauty products.

 

Complainant's rights in its mark date back to at least June 4, 2024.

 

The disputed domain name was registered on June 18, 2024.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The resolving website attempts to pass off as Complainant by displaying its mark and logo, and images of Complainant's products.

 

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 disputed domain incorporates Complainant's BONDBAR mark in its entirety and merely adds a hyphen and the generic term "the", together with the ".com" generic top-level domain ("gTLD"). Such changes fail sufficiently to distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable 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 Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Tercent Inc. v. Lee Yi, FA 139720 (Forum Feb. 10, 2003) (stating "nothing in [the respondent's] WHOIS information implies that [the respondent] is 'commonly known by' the disputed domain name" as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1408001574905 (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). Here, the WHOIS information for the disputed domain name lists the registrant as "tu ra". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Complainant presents evidence showing that Respondent uses the disputed domain name to attempt to impersonate Complainant. This does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Edible Communities v. Thoreau,  FA0803001158554 (Forum Apr. 16, 2008) ("[R]espondent's use of the disputed domain name [<theedibleaustin.com>] to pass itself off as [c]omplainant shows that [r]espondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(i) as well as Policy ¶ 4(c)(iii)."); see also Digg v. Digg , FA0808001220833 (Forum Oct. 9, 2008) (finding no legitimate interest in respondent's use of the domain name <digg-inc.com> because "[r]espondent is attempting to pass itself off as [c]omplainant" and such "actions do not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)."). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, Respondent uses the disputed domain name to attempt to impersonate Complainant. This evinces bad faith registration and use under Policy ¶ 4(a)(iii). See American International Group, Inc. v. Walter Busby d/b/a AIG Mergers and Acquisitions, FA0304000156251 (Forum May 30, 2003) (the resolving website gave every appearance of being associated or affiliated with Complainant's business); see also Mortgage Research Center LLC v. Russell Miranda, FA0705000993017 (Forum July 9, 2007) (Respondent is implying an affiliation with Complainant, and consumers seeking Complainant's products and services may become confused when encountering Respondent's website). Thus the Panel finds bad faith registration and use under Policy ¶ 4(a)(iii).

 

Further, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the resolving website displays Complainant's mark and logo, and images of Complainant's products. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).

 

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 <the-bondbar.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: February 20, 2025