Bella Belle LLC v. 强 吕
Claim Number: FA2304002041024
Complainant is Bella Belle LLC (“Complainant”), represented by Veronyca Kwan, Texas, USA. Respondent is 强 吕 (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <thebellabelle.com>, which is registered with Name.com, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to Forum electronically on April 21, 2023; Forum received payment on April 21, 2023.
On April 24, 2023, Name.com, Inc. confirmed by e-mail to Forum that the <thebellabelle.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 April 26, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 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@thebellabelle.com. Also on April 26, 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 May 18, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is an online retailer of ladies’ footwear.
Complainant holds a registration for the BELLA BELLE trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 5,170,266, registered March 28, 2017.
Respondent registered the domain name <thebellabelle.com> on July 25, 2022.
The domain name is confusingly similar to Complainant’s BELLA BELLE mark.
Respondent is not affiliated with Complainant.
The website resolving from the domain name displays pirated copies of the distinctive features, including Complainant’s logo and photos of its products, from Complainant’s official website, which is located at <www.bellabelleshoes.com>.
In conducting its putative marketing scheme, Respondent induces unsuspecting Internet users to provide to it their sensitive personal and financial data, including their names, addresses and credit card information.
Respondent has neither rights to nor legitimate interests in the domain name.
Respondent has both registered and now uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
By reason of its registration of the BELLA BELLE trademark with a national trademark authority, the USPTO, Complainant has established that it has rights in that mark sufficient to satisfy the requirement of Policy ¶ 4(a)(i) that it show standing to pursue its claim against Respondent in this proceeding. See, for example, Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here China). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
With respect to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <thebellabelle.com> domain name is confusingly similar to Complainant’s BELLA BELLE trademark. The domain name contains the mark in its entirety, with only deletion of the space between its terms and the addition of the definite article “the” and the generic Top Level Domain (“gTLD”) “.com.”. These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Madewell Inc. v. Qin Zhang, D2022-3204 (WIPO October 10, 2022):
Turning to whether the Disputed Domain Name is … confusingly similar to the … trademark, the Panel observes that the Disputed Domain Name comprises: (a) the word “the”; (b) followed by an exact reproduction of the Complainant’s … trademark; (c) followed by the generic Top Level Domain (“gTLD”) “.com”…. This Panel accepts that the addition of the word “the” does not preclude a finding of confusing similarity to the Complainant’s trademark [citation omitted]….
As to Respondent’s deletion of the space between the terms of Complainant’s mark in forming the domain name, this alteration of the mark does not affect our analysis because domain name syntax does not permit the use of blank spaces. See, for example, Gurney’s Inn Resort & Spa Ltd. v. Whitney, FA 140656 (Forum February 19, 2003):
[S]paces between words are not significant in determining the similarity of a domain name and a mark because … spaces are not reproducible in a domain name.
Finally, under this head of the Policy, Respondent’s inclusion of the gTLD “.com” in the domain name is likewise not germane to our analysis. See, for example, Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent has neither rights to nor legitimate interests in the contested <thebellabelle.com> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See, for example, Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c)(i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that there is no evidence in the record suggesting that Respondent has been commonly known by the <thebellabelle.com> domain name. There is likewise no evidence before us suggesting that Complainant has licensed or otherwise authorized Respondent to use the BELLA BELLE mark in any connection. In addition, Complainant alleges, and Respondent does not deny, that Respondent is not affiliated with Complainant. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “强 吕,” which may be rendered in English as “powerful army,” neither of which resembles the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner).
We next observe that Complainant asserts, without objection from Respondent, that:
a. Respondent uses the <thebellabelle.com> domain name to profit illicitly by passing itself off as Complainant online while purporting to sell Complainant’s footwear products at discounted prices, and
b. the website resolving from the domain name displays copies of the distinctive features, including Complainant’s logo and photos of its products, from Complainant’s official website, which is located at <www.bellabelleshoes.com>, and
c. in conducting its putative marketing scheme, Respondent induces unsuspecting Internet users to provide to it their sensitive personal and financial data, including their names, addresses and credit card information.
This employment is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018):
Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services [nor is it a legitimate noncommercial or fair use] under Policy ¶¶ 4(c)(i) & (iii).
See also Wolverine World Wide, Inc. v. Fergus Knox, FA 1627751 (Forum August 19, 2015) (finding no bona fide offering of goods or services and no legitimate noncommercial or fair use of a challenged domain name where a respondent used a website resolving from that domain name to sell products branded with a UDRP complainant’s mark, which products were either counterfeits or legitimate products of that complainant being resold without authorization).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s attempt to use the disputed <thebellabelle.com> domain name, which we have found to be confusingly similar to Complainant’s BELLA BELLE trademark, is an effort by Respondent to profit from the confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain name. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name. See, for example, Kmart v. Khan, FA 127708 (Forum November 22, 2002) (finding that, where a respondent sought to profit from its diversionary use of a UDRP complainant's mark in a domain name resolving to commercial websites, it could be concluded that that respondent’s conduct came within the terms of Policy ¶ 4(b)(iv)).
We are also convinced by the evidence that Respondent’s efforts to induce unsuspecting Internet users to reveal their sensitive personal and financial information at the website resolving from the <thebellabelle.com> domain name constitutes a fraudulent scheme, sometimes described as “phishing,” which further demonstrates Respondent’s bad faith in registering and using the domain name. See, for example, Wells Fargo & Co. v. Maniac State, FA 608239 (Forum January 19, 2006) (finding bad faith registration and use under Policy ¶ 4(a)(iii) where a respondent employed a disputed domain name fraudulently to acquire the personal and financial information of a UDRP complainant’s customers).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <thebellabelle.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: May 26, 2023
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