DECISION

 

Apex Brands, Inc. v. Vadym Bayev

Claim Number: FA2607002234489

 

PARTIES

Complainant is Apex Brands, Inc. ("Complainant"), represented by Jason A. Pittman of Dority & Manning, P.A., South Carolina, USA. Respondent is Vadym Bayev ("Respondent"), Ukraine.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <nicholson-files.com>, registered with Spaceship, 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.

 

Ho-Hyun Nahm, Esq. as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on July 23, 2026; Forum received payment on July 23, 2026.

 

On July 24, 2026, Spaceship, Inc. confirmed by e-mail to Forum that the <nicholson-files.com> domain name is registered with Spaceship, Inc. and that Respondent is the current registrant of the name. Spaceship, Inc. has verified that Respondent is bound by the Spaceship, 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 July 27, 2026, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 17, 2026 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@nicholson-files.com. Also on July 27, 2026, 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 August 18, 2026, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. 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

i) Complainant is an affiliate of Apex Tool Group (ATG), which is one of the largest manufacturers of professional hand and power tools in the world. The NICHOLSON trademark has been used for more than 120 years in association with these tools. Complainant has rights in the NICHOLSON mark based upon numerous trademark registrations, including its registration with the USPTO (e.g., Reg. No. 50,137, registered March 6, 1906, in Class 8). The disputed domain name is confusingly similar to Complainant's NICHOLSON mark because it contains Complainant's mark in its entirety, simply adding a hyphen, the descriptive term "files," and the ".com" gTLD. The website resolving from the disputed domain name seeks to impersonate Complainant by appearing to be associated with Complainant.

 

ii) Respondent has no legitimate interests in the disputed domain name. Complainant's prior rights in the mark precede Respondent's registration of the disputed domain name. Respondent is not commonly known by the disputed domain name, and Complainant has not authorized or licensed to Respondent any rights in the NICHOLSON marks. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to pass itself off as Complainant. Respondent uses the disputed domain name to direct Internet users through Amazon.com affiliate links, leading to Amazon.com results that include listings for competitors' products.

 

iii) Respondent has created a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of its website, constituting bad faith registration and use. Respondent had actual knowledge of Complainant's rights in the NICHOLSON mark when registering the disputed domain name, given the longstanding prior use of Complainant's NICHOLSON mark for more than 100 years before Respondent registered the disputed domain name. Respondent registered the disputed domain name that comprises the NICHOLSON mark and has used it to lure consumers through the false appearance of affiliation with a well-known brand, and then diverts them to Amazon.com affiliate links for competing products and third-party advertisements. Respondent and the website maintained at the disputed domain have intentionally targeted Complainant. Respondent's unauthorized use of Complainant's or its affiliates' images constitutes copyright infringement and is evidence of bad faith. Respondent has engaged in a pattern of bad faith, as evidenced by its involvement in numerous prior adverse UDRP decisions.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

1. The disputed domain name was registered on September 13, 2025.

 

2. Complainant has established rights in the NICHOLSON mark based upon numerous trademark registrations, including its registration with the USPTO (e.g., Reg. No. 50,137, registered March 6, 1906, in Class 8).

 

3. The website resolving from the disputed domain name indicates that it is operated by "Nicholson Files" and uses some of the same images as a legitimate website associated with Complainant, by displaying Complainant's trademarks and unauthorized product images.

 

4. The disputed domain name directs Internet users through Amazon.com affiliate links and leads to Amazon.com results that include listings for competitors' products.

 

5. No disclaimer of non-affiliation with Complainant appears on the website displaying Complainant's trademarks and unauthorized product images.

 

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 3.1 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

Complainant claims rights in the NICHOLSON mark based upon numerous trademark registrations, including its registration with the USPTO (e.g., Reg. No. 50,137, registered March 6, 1906, in Class 8). Registration of a mark with the USPTO is sufficient to establish rights in that mark under Policy ¶ 4(a)(i). Complainant provides copies of its USPTO registrations for the NICHOLSON mark. Therefore, the Panel finds that Complainant has established rights in the mark under Policy ¶ 4(a)(i).

 

Complainant contends that the disputed domain name <nicholson-files.com> is confusingly similar to Complainant's NICHOLSON mark because it contains Complainant's mark in its entirety, simply adding a hyphen, the descriptive term "files," referring to certain products sold by ATG or its affiliates, and the ".com" gTLD. The Panel agrees and finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Section 2.1, WIPO Overview 3.1 ("Where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.").

 

Complainant argues that Respondent has no rights or legitimate interest in the disputed domain name as Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use Complainant's mark, and Respondent is not affiliated with Complainant. Relevant information, such as WHOIS information, can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). The Panel notes that the unmasked WHOIS data lists "Vadym Bayev" as the registrant, and there is no evidence in the record to suggest Respondent was authorized to use the mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use, as Respondent uses the disputed domain name to impersonate Complainant and to sell unauthorized products of Complainant. The Panel notes that passing off as Complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (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, which were either counterfeit products or legitimate products being resold without authorization).

 

The Panel notes from the screenshots of the disputed domain name's resolving website that (i) the website resolving from the disputed domain name indicates that it is operated by "Nicholson Files" and uses some of the same images as a legitimate website associated with Complainant, by displaying Complainant's trademarks and unauthorized product images; (ii) the disputed domain name directs Internet users through Amazon.com affiliate links and leads to Amazon.com results that include listings for competitors' products; and (iii) no disclaimer of non-affiliation with Complainant appears on the website displaying Complainant's trademarks and unauthorized product images.

 

While the authenticity of the products is unknown, even if the products offered for sale at the website associated with the disputed domain name are Complainant's genuine products, the Panel finds that Respondent's impersonation of Complainant and fraudulent use of the disputed domain name by mimicking Complainant's website, directing Internet users through Amazon.com affiliate links, and leading to Amazon.com results that include listings for competitors' products, without the need to apply the Oki Data test (see Oki Data Americas, Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001)), does not constitute a use in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor is it a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).

 

The Panel finds that Complainant has established a prima facie case arising from the considerations above. All of these matters go to support the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Complainant contends that Respondent has created a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of its website, constituting bad faith registration and use. The Panel finds that passing off as Complainant while offering to sell competing products can evidence bad faith registration and use under Policy ¶¶ 4(b)(iii) and (b)(iv). See Ontel Products Corporation v. waweru njoroge, FA 1762229 (Forum Dec. 22, 2017) ("Respondent's primary offering seem to be counterfeits of Complainant's toy car products. Respondent's use of the <magictrackscars.com> domain name is thus disruptive to Complainant's business per Policy ¶ 4(b)(iii)"); see also Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (finding the respondent registered and used the at-issue domain name in bad faith because it used the name to pass off as the complainant and offer for sale competitive, counterfeit goods).

 

As previously noted, Complainant has provided screenshots of both Complainant's website and the resolving webpage to which the disputed domain name directs, which demonstrate Respondent's impersonation of Complainant and fraudulent use of the disputed domain name, directing Internet users through Amazon.com affiliate links, and leading to Amazon.com results that include listings for competitors' products. The Panel finds that such passing off activities constitute a disruption of Complainant's business under Policy ¶ 4(b)(iii). In addition, Respondent uses the disputed domain name for commercial gain by redirecting Internet users seeking Complainant to Respondent's own website, thereby creating a likelihood of confusion with Complainant's marks. Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).

 

Complainant further contends that Respondent registered the disputed domain name in bad faith with knowledge of Complainant's rights in its NICHOLSON mark, given the longstanding use of Complainant's NICHOLSON mark for more than 100 years before Respondent registered the disputed domain name.

 

The Panel notes that, due to the long commercial success of the NICHOLSON mark for over 100 years, the NICHOLSON mark had become well-known when Respondent registered the disputed domain name. The Panel infers, due to the notoriety of Complainant's mark and Respondent's passing off activities, that Respondent had knowledge of Complainant's rights in the NICHOLSON mark at the time of registering the disputed domain name, and finds that Respondent registered the disputed domain name in 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 <nicholson-files.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Ho-Hyun Nahm, Esq., Panelist

Dated: August 18, 2026