Nervous Tattoo, Inc. v. gaolin and caiyin and linxianjin and linxiuli and cai han and wangfeng and wuming and fangguorong and gaoming and chenhan and liyulin and linqing and huangxiu and cai cai huo c/o cai cai huo
Claim Number: FA1003001313843
Complainant is Nervous
Tattoo, Inc. (“Complainant”), represented by J. Andrew Coombs, of J. Andrew Coombs, A Professional
Corporation,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <edhardycn.com>, <bestedhardy.com>, <edhardyuk.com>, <edhardyhoody.com>, <edhardyroom.com>, <edhardy888.com>,
<ed-hardyus.com>, <edhardyshop-us.com>, <edhardystar.com>,
<edhardy4sales.com>, and <edhardy56.com> registered
with Xin Net Technology Corporation.
The domain names at issue are <edhardyship.com> and <youedhardy.com> registered
with Beijing Innovative Linkage Technology Ltd. d/b/a dns.com.cn.
The domain name at issue is <lookedhardy.com> registered with HooYoo Information
Technology Co. Ltd.
The domain name at issue is <edhardyshoping.com> registered with Xiamen ChinaSource Internet Service Co., Ltd..
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 March 17, 2010. The Complaint was submitted in both Chinese and English.
On March 18, 2010, Xin Net Technology Corporation confirmed by e-mail to the National Arbitration Forum that the <edhardycn.com>, <bestedhardy.com>, <edhardyuk.com>, <edhardyhoody.com>, <edhardyroom.com>, <edhardy888.com>, <ed-hardyus.com>, <edhardyshop-us.com>, <edhardystar.com>, <edhardy4sales.com>, and <edhardy56.com> domain names are registered with Xin Net Technology Corporation and that Respondent is the current registrant of the names. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 March 18, 2010, Beijing Innovative Linkage Technology Ltd. d/b/a dns.com.cn confirmed by e-mail to the National Arbitration Forum that the <edhardyship.com> and <youedhardy.com> domain names are registered with Beijing Innovative Linkage Technology Ltd. d/b/a dns.com.cn and that Respondent is the current registrant of the names. Beijing Innovative Linkage Technology Ltd. d/b/a dns.com.cn has verified that Respondent is bound by the Beijing Innovative Linkage Technology Ltd. d/b/a dns.com.cn 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 March 21, 2010, HooYoo Information Technology Co. Ltd. confirmed by e-mail to the National Arbitration Forum that the <lookedhardy.com> domain name is registered with HooYoo Information Technology Co. Ltd. and that Respondent is the current registrant of the name. HooYoo Information Technology Co. Ltd. has verified that Respondent is bound by the HooYoo Information Technology Co. Ltd. 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 March 30, 2010, Xiamen ChinaSource Internet Service Co., Ltd. confirmed by e-mail to the National Arbitration Forum that the <lookedhardy.com> domain name is registered with Xiamen ChinaSource Internet Service Co., Ltd. and that Respondent is the current registrant of the name. Xiamen ChinaSource Internet Service Co., Ltd. has verified that Respondent is bound by the Xiamen ChinaSource Internet Service Co., Ltd. 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 April 7, 2010, the Forum served the Chinese language Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 27, 2010 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@edhardycn.com, postmaster@bestedhardy.com, postmaster@edhardyuk.com, postmaster@edhardyship.com, postmaster@edhardyhoody.com, postmaster@lookedhardy.com, postmaster@youedhardy.com, postmaster@edhardyroom.com, postmaster@edhardy888.com, postmaster@ed-hardyus.com, postmaster@edhardyshop-us.com, postmaster@edhardystar.com, postmaster@edhardy4sales.com, postmaster@edhardy56.com, and postmaster@edhardyshoping.com. Also on April 7, 2010, the Chinese language Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On May 4, 2010, 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" through submission of a Written Notice, as defined in Rule 1. 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <edhardycn.com>, <bestedhardy.com>, <edhardyuk.com>, <edhardyship.com>, <edhardyhoody.com>, <lookedhardy.com>, <youedhardy.com>, <edhardyroom.com>, <edhardy888.com>, <ed-hardyus.com>, <edhardyshop-us.com>, <edhardystar.com>, <edhardy4sales.com>, <edhardy56.com>, and <edhardyshoping.com> domain names are confusingly similar to Complainant’s ED HARDY mark.
2. Respondent does not have any rights or legitimate interests in the <edhardycn.com>, <bestedhardy.com>, <edhardyuk.com>, <edhardyship.com>, <edhardyhoody.com>, <lookedhardy.com>, <youedhardy.com>, <edhardyroom.com>, <edhardy888.com>, <ed-hardyus.com>, <edhardyshop-us.com>, <edhardystar.com>, <edhardy4sales.com>, <edhardy56.com>, and <edhardyshoping.com> domain names.
3. Respondent registered and used the <edhardycn.com>, <bestedhardy.com>, <edhardyuk.com>, <edhardyship.com>, <edhardyhoody.com>, <lookedhardy.com>, <youedhardy.com>, <edhardyroom.com>, <edhardy888.com>, <ed-hardyus.com>, <edhardyshop-us.com>, <edhardystar.com>, <edhardy4sales.com>, <edhardy56.com>, and <edhardyshoping.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Nervous Tattoo, Inc., is the
exclusive licensee for
Respondent registered the disputed domain names on the following dates: (1) <edhardycn.com> registered on November 4, 2009; (2) <bestedhardy.com> registered on December 18, 2009; (3) <edhardyuk.com> registered on July 28, 2009; (4) <edhardyship.com> registered on June 24, 2009; (5) <edhardyhoody.com> registered on July 28, 2009; (6) <lookedhardy.com> registered on July 22, 2009; (7) <youedhardy.com> registered on January 1, 2010; (8) <edhardyroom.com> registered on September 17, 2009; (9) <edhardy888.com> registered on August 9, 2009; (10) <ed-hardyus.com> registered on July 28, 2009; (11) <edhardyshop-us.com> registered on August 12, 2009; (12) <edhardystar.com> registered on September 17, 2009; (13) <edhardy4sales.com> registered on April 6, 2009; (14) <edhardy56.com> registered on September 9, 2009; and (15) <edhardyshoping.com> registered on September 30, 2009. The disputed domain names each resolve to websites purporting to sell Complainant’s products. The websites display Complainant’s ED HARDY mark and provide photographs of goods resembling Complainant’s 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.
Preliminary Issue
– Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” The WHOIS information contains identical e-mail addresses and similar contact information for each of the disputed domain names. The Panel finds that the disputed domain names resolve to website offering the same counterfeit versions of Complainant’s product and some of the resolving websites reference the other websites and domain names at issue in this dispute. Consequently, the Panel concludes that the domain name registrants are a single entity and, therefore, one Respondent.
Complainant asserts rights in the ED HARDY mark through its
relationship with
Complainant alleges Respondent’s
<edhardyshoping.com> domain names are confusingly similar to its
ED HARDY mark. Respondent adds the
letters “shoping,” presumably a misspelled form of the term “shopping,” to
Complainant’s mark in the disputed domain name.
In addition, Respondent affixes the generic top-level domain
(“gTLD”) “.com” to Complainant’s mark in the disputed domain name. The Panel finds these changes do not
distinguish Respondent’s disputed domain name from Complainant’s mark. Therefore, the Panel finds Respondent’s <edhardyshoping.com>
domain name is confusingly similar
to Complainant’s ED HARDY mark under Policy ¶ 4(a)(i). See Am.
Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat.
Arb. Forum Aug. 28, 2002) (finding that the <aolrj.com> domain name was
confusingly similar to the complainant’s AOL mark because “…the addition of a
string of indiscriminate letters to a famous mark in a second level domain does
not differentiate the domain name from the mark.”); see also L.F.P., Inc. v. Yarbrough, FA 114420 (Nat. Arb. Forum July
9, 2002) (finding that <xxxbarelylegal.com> domain name to be confusingly
similar to the complainant’s BARELY LEGAL mark because the addition of “xxx”
was not a distinguishing addition); see
also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding
that the mere addition of the generic top-level domain “.com” is insufficient
to differentiate a disputed domain name from a mark).
Complainant argues Respondent’s <bestedhardy.com>, <edhardyship.com>, <edhardyhoody.com>, <lookedhardy.com>, <edhardystar.com>, and <edhardyroom.com>, and <youedhardy.com> domain names are confusingly similar to its ED HARDY mark. The disputed domain names add the generic words “best,” “ship,” “hoody,” “look,” “star,” “room,” and “you” to Complainant’s mark in the corresponding disputed domain names. The disputed domain names also attach the gTLD “.com” to Complainant’s mark. The Panel finds these changes do not render Respondent’s disputed domain distinct name from Complainant’s mark. Therefore, the Panel finds Respondent’s disputed <bestedhardy.com>, <edhardyship.com>, <edhardyhoody.com>, <lookedhardy.com>, <edhardystar.com>, and <edhardyroom.com>, and <youedhardy.com> domain names are confusingly similar to Complainant’s ED HARDY mark pursuant to Policy ¶ 4(a)(i). See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Warner Bros. Entm’t Inc. v. Rana, FA 304696 (Nat. Arb. Forum Sept. 21, 2004) (finding that the addition of the generic term “collection” to Complainant’s HARRY POTTER mark failed to distinguish the domain name from the mark); see also Reese v. Morgan, supra.
Complainant claims
the <ed-hardyus.com>, <edhardycn.com>, and <edhardyuk.com>
domain names are confusingly similar to its ED HARDY mark. Respondent adds a hyphen to Complainant’s
mark in the first disputed domain name. Respondent
also affixes the country codes “us,” “cn,” and “
Complainant asserts the <edhardyshop-us.com> domain name is confusingly similar to its ED HARDY mark. In the disputed domain name, Respondent adds a hyphen, the country code “us,” the generic word “shop,” and the gTLD to Complainant’s mark. These modifications do not sufficiently distinguish Respondent’s disputed domain name from Complainant’s mark. Therefore, the Panel finds Respondent’s disputed <edhardyshop-us.com> domain name is confusingly similar to Complainant’s ED HARDY mark. See Eastman Chem. Co. v. Patel, FA 524752 (Nat. Arb. Forum Sept. 7, 2005) (“Therefore, the Panel concludes that the addition of a term descriptive of Complainant’s business, the addition of a hyphen, and the addition of the gTLD ‘.com’ are insufficient to distinguish Respondent’s domain name from Complainant’s mark.”); see also Health Devices Corp. v. Aspen S T C, supra; Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, supra; see also Reese v. Morgan, supra.
Complainant alleges Respondent’s <edhardy888.com> and <edhardy56.com> domain names are confusingly similar to its ED HARDY mark. Respondent attaches the numbers “888” and “56” to Complainant’s mark in the respective disputed domain names. Respondent also affixes the gTLD “.com” to Complainant’s mark in the disputed domain names. The Panel concludes these changes do not render Respondent’s disputed domain names distinct from Complainant’s mark. Therefore, the Panel finds Respondent’s disputed <edhardy888.com> and <edhardy56.com> domain names are confusingly similar to Complainant’s ED HARDY mark. See Am. Online, Inc. v. garybush co uk, FA 360612 (Nat. Arb. Forum Dec. 22, 2004) (“Respondent’s domain name is confusingly similar to Complainant’s AOL mark because the disputed domain name incorporates the mark with the mere addition of the nondistinctive number ‘0.’ The addition of the number ‘0’ is insufficient to distinguish the domain name from Complainant’s mark.”); see also Omnitel Pronto Italia S.p.A. v. Bella, D2000-1641 (WIPO Mar. 12, 2001) (finding that the contested <omnitel2000.com> domain name is confusingly similar to the OMNITEL trademark); see also Reese v. Morgan, supra.
Complainant claims
the <edhardy4sales.com> domain name is confusingly similar to its
ED HARDY mark. Respondent adds the
number “4,” the generic word “sales,” and the gTLD “.com” to Complainant’s mark
in the disputed domain name. The
Panel finds these additions do not render Respondent’s disputed domain distinct
name from Complainant’s mark. Therefore,
the Panel finds Respondent’s disputed <edhardy4sales.com> domain name is confusingly similar to
Complainant’s ED HARDY mark. See Arthur
Guinness Son & Co. (
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant must make a prima facie case showing Respondent lacks rights or legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). The burden then shifts to Respondent to prove it has rights or legitimate interests in the disputed domain names. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights or legitimate interests. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Despite Respondent’s failure to respond, the Panel will evaluate the record to determine whether Respondent has rights or legitimate interests in the disputed domain names under Policy ¶ 4(c).
Complainant argues it has not authorized Respondent to use the ED HARDY mark in a domain name. Complainant also asserts Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Furthermore, the WHOIS information does not indicate that the Respondent is commonly known by any of the disputed domain names. Without evidence to the contrary, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant claims Respondent uses the disputed domain names
to offer counterfeit merchandise that competes with Complainant’s business. Respondent’s disputed domain names resolve to
websites that feature Complainant’s ED HARDY mark and logo and claim to sell
Complainant’s products. The Panel finds
that Respondent’s use of the disputed domain names to sell counterfeit goods,
and thereby profit from the use of Complainant’s mark, is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i) and it is not a legitimate
noncommercial or fair use of the disputed domain names pursuant to Policy ¶
4(c)(iii). See Hewlett-Packard Co. v. Inversiones HP Milenium
In addition, the Panel finds that Respondent is attempting
to pass itself off as Complainant for profit.
Respondent uses Complainant’s mark and logo on Respondent’s
websites. Respondent also offers similar
goods that claim to be those made by Complainant. The Panel finds that Respondent’s efforts to
pass itself off as Complainant are further evidence that Respondent lacks
rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb.
Forum May 30, 2003) (finding that the respondent attempts to pass itself off as
the complainant online, which is blatant unauthorized use of the complainant’s
mark and is evidence that the respondent has no rights or legitimate interests
in the disputed domain name); see also Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007)
(“Because [the] respondent in this case is also attempting to pass itself off
as [the] complainant, presumably for financial gain, the Panel finds the
respondent is not using the <mortgageresearchcenter.org> domain name for
a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to
Policy ¶ 4(c)(iii).”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant claims Respondent uses the disputed domain names to divert Internet users seeking Complainant’s products to Respondent’s websites. The Panel finds Respondent’s use of the confusingly similar disputed domain names to redirect Internet users to websites that offers goods that compete with Complainant’s products disrupts Complainant’s business and constitutes registration and use in bad faith under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Lambros v. Brown, FA 198963 (Nat. Arb. Forum Nov. 19, 2003) (finding that the respondent registered a domain name primarily to disrupt its competitor when it sold similar goods as those offered by the complainant and “even included Complainant's personal name on the website, leaving Internet users with the assumption that it was Complainant's business they were doing business with”).
Complainant also argues that Respondent uses the disputed domain names to offer counterfeit versions of Complainant’s goods. The Panel finds that Respondent’s activities in selling counterfeit goods is further evidence of Respondent’s bad faith registration and use under Policy ¶ 4(b)(iv). See Hewlett-Packard Co. v. Ali, FA 353151 (Nat. Arb. Forum Dec. 13, 2004) (“Respondent [used “HP” in its domain name] to benefit from the goodwill associated with Complainant’s HP marks and us[ed] the <hpdubai.com> domain name, in part, to provide products similar to those of Complainant. Respondent’s practice of diversion, motivated by commercial gain, constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); see also Utensilerie Assoc. S.p.A. v. C & M, D2003-0159 (WIPO Apr. 22, 2003) (“The contents of the website, offering Usag products, together with the domain name may create the (incorrect) impression that Respondent is either the exclusive distributor or a subsidiary of Complainant, or at the very least that Complainant has approved its use of the domain name.”).
Finally, Complainant argues that Respondent is using the disputed domain names to pass itself off as being associated with Complainant by displaying Complainant’s ED HARDY mark and logo on the resolving websites. The Panel finds that this use also supports findings of bad faith use and registration under Policy ¶ 4(a)(iii). See Monsanto Co. v. Decepticons, FA 101536 (Nat. Arb. Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith); see also DaimlerChrysler Corp. v. Bargman, D2000-0222 (WIPO May 29, 2000) (finding that the respondent’s use of the title “Dodgeviper.com Official Home Page” gave consumers the impression that the complainant endorsed and sponsored the respondent’s website).
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 <edhardycn.com>, <bestedhardy.com>, <edhardyuk.com>, <edhardyship.com>, <edhardyhoody.com>, <lookedhardy.com>, <youedhardy.com>, <edhardyroom.com>, <edhardy888.com>, <ed-hardyus.com>, <edhardyshop-us.com>, <edhardystar.com>, <edhardy4sales.com>, <edhardy56.com>, and <edhardyshoping.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: May 12, 2010
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