Interflora, Inc. v. FABIOLA CALISI
Claim Number: FA2203001988978
Complainant is Interflora, Inc. (“Complainant”), represented by Scott J. Major of Millen, White, Zelano & Branigan, P.C., Virginia, USA. Respondent is FABIOLA CALISI (“Respondent”), Italy.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <interfloravezzano.com>, registered with Tucows Domains Inc..
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.
Complainant submitted a Complaint to the Forum electronically on March 20, 2022; the Forum received payment on March 20, 2022.
On March 21, 2022, Tucows Domains Inc. confirmed by e-mail to the Forum that the <interfloravezzano.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 March 23, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 12, 2022 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@interfloravezzano.com. Also on March 23, 2022, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On April 18, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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 contends as follows:
Complainant, Interflora, Inc., provides floral services, allowing its members to send arrangements across distant geographic locations.
Complainant has rights in the INTERFLORA mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <interfloravezzano.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark and added the geographic indicator “avezzano” and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <interfloravezzano.com> domain because Respondent is not commonly known by the at-issue domain name and is not authorized to use Complainant’s INTERFLORA mark. Additionally, Respondent fails to use the at-issue domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain name to compete with Complainant.
Respondent has registered and uses the <interfloravezzano.com> domain name in bad faith because Respondent uses the at-issue domain name to create initial interest confusion and bad faith attraction for commercial gain. In addition, Respondent used a privacy shield to hide its identity. Finally, Respondent had constructive and actual knowledge of its rights in the mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the INTERFLORA mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the INTERFLORA.
Respondent uses the at-issue domain name to compete with Complainant.
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:
(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”).
Complainant has rights in a mark that is confusingly similar to the at-issue domain name.
Complainant shows that it has a USPTO registration for its INTERFLORA mark. Registration of a mark with the USPTO is sufficient to establish rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <interfloravezzano.com> domain name is confusingly similar to Complainant’s INTERFLORA mark under Policy ¶ 4(a)(i). The domain name differs from Complainant’s trademark by the domain name’s addition of the term “vezzano,” which when read in concert with the INTERFLORA’s “a” creates the word “Avezzano” the name of an Italian village, and by the domain name’s “.com” top-level. These differences are insufficient to distinguish Respondent domain name from Complainant’s trademark pursuant to the Policy. See Franklin Covey Co. v. franklincoveykorea, FA 1774660 (Forum Apr. 11, 2018) (finding that the <franklincoveykorea.com> domain name is confusingly similar to the FRANKLIN COVEY mark, as “[t]he addition of a geographic term and a gTLD do not negate confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i).”).
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).
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 Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for <interfloravezzano.com> identifies the domain name’s registrant as “Fabiola Calisi” and the record before the Panel contains no evidence showing that Respondent is commonly known by the <interfloravezzano.com> domain name. The Panel therefore concludes that Respondent is not commonly known by <interfloravezzano.com> for the purposes of Policy ¶ 4(c)(ii). See Radio Flyer Inc. v. er nong wu, FA 2011001919893 (Forum Dec. 16, 2020) (“Here, the WHOIS information lists “er nong wu” as the registrant and no information suggests Complainant has authorized Respondent to use the RADIO FLYER mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”)
Respondent uses <interfloravezzano.com> to address a website that competes with Complainant by promoting floral services. Respondent’s use of the at-issue domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See j2 Global Canada, Inc. and Landslide Technologies, Inc. v. VIJAY S KUMAR / STRATEGIC OUTSOURCING SERVICES PVT LTD, FA 1647718 (Forum Jan. 4, 2016) (finding that the disputed domain purports to offer for sale goods and services in the field of electronic marketing, which directly overlap with the services covered by Complainant’s registrations and offered by Complainant online, and therefore Respondent does not have rights or legitimate interests through its competing use).
Given the forgoing, Complainant satisfies its initial burden and without any response from Complainant demonstrates Respondent’s lack of rights and legitimate interests in the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
As mentioned above regarding rights or legitimate interests, Respondent uses its confusingly similar <interfloravezzano.com> domain name to compete with Complainant. Using the confusingly similar domain name in such a manner is disruptive to Complainant’s business and falsely implies that there is a sanctioned relationship between Complainant and Respondent when there is no such relationship. Therefore, Respondent’s use of the domain name shows Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Wall v. Silva, FA 105899 (Forum Apr. 29, 2002) (finding that despite respondent’s claim that it used the <josephinewall.com> domain name, which was identical to complainant’s JOSEPHINE WALL mark, to help complainant become popular in the United States, the Panel found that the respondent’s use of the domain name to sell the complainant’s artwork in the United States constituted disruption pursuant to Policy ¶ 4(b)(iii)); see also, Sandhills Publishing Company v. sudeep banerjee / b3net.com, Inc., FA 1674572 (Forum June 17, 2016) (finding that the respondent took advantage of the confusing similarity between the <machinerytraderparts.com> domain name and the complainant’s MACHINERY TRADER mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services).
Moreover, Respondent registered <interfloravezzano.com> knowing that Complainant had trademark rights in INTERFLORA and thus in <interfloravezzano.com>. Respondent’s actual knowledge of Complainant’s rights in <interfloravezzano.com> is evident from the notoriety of Complainant’s trademark as well as from Respondent’s offering of competitive floral retail services on its <interfloravezzano.com> website. Respondent’s prior knowledge of Complainant's INTERFLORA trademark further indicates Respondent’s bad faith under Policy ¶ 4(a)(iii). 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 the disputed domain name”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <interfloravezzano.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 20, 2022
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