Audigier Brand Management Group, LLC v. bai wentao
Claim Number: FA0909001286108
Complainant is Audigier
Brand Management Group, LLC (“Complainant”), represented by J. Andrew Coombs, of J. Andrew Coombs, A Professional
Corporation,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <christianaudigier.cc>, registered with WEB COMMERCE COMMUNICATIONS LIMITED d/b/a WEBNIC.CC.
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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 24, 2009; the National Arbitration Forum received a hard copy of the Complaint on September 24, 2009.
On October 4, 2009, WEB COMMERCE COMMUNICATIONS LIMITED d/b/a WEBNIC.CC confirmed by e-mail to the National Arbitration Forum that the <christianaudigier.cc> domain name is registered with WEB COMMERCE COMMUNICATIONS LIMITED d/b/a WEBNIC.CC and that Respondent is the current registrant of the name. WEB COMMERCE COMMUNICATIONS LIMITED d/b/a WEBNIC.CC has verified that Respondent is bound by the WEB COMMERCE COMMUNICATIONS LIMITED d/b/a WEBNIC.CC registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 8, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 28, 2009 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@christianaudigier.cc by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 4, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <christianaudigier.cc> domain name is identical to Complainant’s CHRISTIAN AUDIGIER mark.
2. Respondent does not have any rights or legitimate interests in the <christianaudigier.cc> domain name.
3. Respondent registered and used the <christianaudigier.cc> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Audigier Brand Management Group, LLC, is the owner of the CHRISTIAN AUDIGIER trademark. The trademark is associated with a fashion line. Complainant holds trademark registrations for its CHRISTIAN AUDIGIER mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,348,997 issued December 4, 2007) and with the China Trademark Office (“CTO”) (Reg. No. 98RE97165 issued May 14, 2008).
Respondent, bai wentao, registered the <christianaudigier.cc> domain name on July 1, 2009. The disputed domain name resolves to a website selling counterfeit fashion products which compete with Complainant’s fashion and clothing products.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant has registered the CHRISTIAN AUDIGIER mark with the USPTO (Reg. No. 3,348,997 issued December 4, 2007) and with the CTO (Reg. No. 98RE97165 issued May 14, 2008). The Panel finds Complainant has established rights in its CHRISTIAN AUDIGIER mark through its trademark registrations with the USPTO and CTO under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the complainants had established rights in marks where the marks were registered with a trademark authority).
Complainant contends Respondent’s <christianaudigier.cc> domain name is identical to Complainant’s CHRISTIAN AUDIGIER mark. The disputed domain name contains Complainant’s entire mark, and simply removes the space separating the terms in the mark and adds the Cocos country-code top-level domain (“ccTLD”) “.cc.” The Panel finds that even after removing a space and the addition of a ccTLD the disputed domain name is still identical to Complainant’s mark. See Wembley Nat’l Stadium Ltd. v. Thomson, D2000-1233 (WIPO Nov. 16, 2000) (finding that the domain name <wembleystadium.net> is identical to the WEMBLEY STADIUM mark); see also Mattel, Inc. v. Unknown, FA 490083 (Nat. Arb. Forum July 11, 2005) (“The domain name [<Barbie.us>] is identical to the trademark “Barbie”, as it uses the trademark in its entirety. The only difference is the addition of the country code “us” which for this purpose is insufficient to distinguish the domain name from the trademark.”). Therefore, the Panel finds Respondent’s <christianaudigier.cc> domain name is identical to Complainant’s CHRISTIAN AUDIGIER mark pursuant to Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) analysis.
Complainant alleges that Respondent lacks rights and legitimate interests in the <christianaudigier.cc> domain name. Previous panels have found that when a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <christianaudigier.cc> domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”).
Respondent has
offered no evidence, and there is no evidence in the record, suggesting that
Respondent is commonly known by the <christianaudigier.cc> domain name.
Complainant asserts that Respondent is not authorized to use the CHRISTIAN
AUDIGIER mark. The WHOIS information
identifies the registrant as “bai wentao.”
Therefore, the Panel finds that Respondent has not established rights or
legitimate interests in the <christianaudigier.cc> domain name
pursuant to Policy ¶ 4(c)(ii). See IndyMac
Bank F.S.B. v. Eshback, FA
830934 (Nat. Arb. Forum Dec. 7, 2006) (finding
that the respondent failed to establish rights and legitimate interests in the
<emitmortgage.com> domain name as the respondent was not authorized to
register domain names featuring the complainant’s mark and failed to submit
evidence of that it is commonly known by the disputed domain name); see
also St. Lawrence Univ. v.
Nextnet Tech, FA 881234 (Nat.
Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate
interests in a disputed domain name where there was no evidence in the record
indicating that the respondent was commonly known by the disputed domain name).
Respondent sells counterfeit fashion products on its website
resolving from the <christianaudigier.cc> domain name. The counterfeit
fashion products compete with Complainant’s genuine fashion and clothing
products. The Panel finds Respondent’s
use of the identical disputed domain name does 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). See Hewlett-Packard
Co. v. Inversiones HP Milenium
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s <christianaudigier.cc> domain name resolves to a website selling
counterfeit fashion and clothing products which compete with Complainant’s
genuine fashion and clothing products.
Internet users interested in purchasing Complainant’s clothing products
may instead purchase Respondent’s counterfeit clothing products because of
Respondent’s use of the identical disputed domain name. The Panel finds Respondent’s use disrupts
Complainant’s fashion and clothing products business, which constitutes bad
faith registration and use under Policy ¶ 4(b)(iii). See Fossil, Inc. v. NAS,
FA 92525 (Nat. Arb. Forum Feb. 23, 2000) (transferring the
<fossilwatch.com> domain name from the respondent, a watch dealer not
otherwise authorized to sell the complainant’s goods, to the complainant); see
also G.D. Searle & Co. v. Celebrex Cox-2 Vioxx.com, FA 124508
(Nat. Arb. Forum Oct. 16, 2002) (“Unauthorized use of Complainant’s CELEBREX
mark to sell Complainant’s products represents bad faith use under Policy ¶ 4(b)(iii).”).
Respondent receives
a commercial benefit from the sale of counterfeit clothing and fashion
products. Internet users searching for
Complainant may become confused as to Complainant’s sponsorship and affiliation
of the website resolving from the disputed domain name. Respondent attempts to profit from this
confusion. The Panel finds Respondent’s
use constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Fanuc Ltd v. Mach. Control Servs., FA 93667 (Nat. Arb. Forum Mar.
13, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by creating a
likelihood of confusion with the complainant's mark by using a domain name
identical to the complainant’s mark to sell the complainant’s products); see
also Nokia Corp. v. Private,
D2000-1271 (WIPO Nov. 3, 2000) (finding bad faith registration and use pursuant
to Policy ¶ 4(b)(iv) where the domain name resolved to a website that offered
similar products as those sold under the complainant’s famous mark).
The Panel finds
Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <christianaudigier.cc> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: November 16, 2009
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum