Hourglass Angel, LLC v. Phatiffany Cook
Claim Number: FA1505001617462
Complainant is Hourglass Angel, LLC (“Complainant”), represented by Richard C. Balough of Balough Law Offices, LLC, Illinois, USA. Respondent is Phatiffany Cook (“Respondent”), Arkansas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hourglassangelgirls.com>, registered with GoDaddy.com, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 1, 2015; the Forum received payment on May 1, 2015.
On May 2, 2015, GoDaddy.com, LLC confirmed by email to the Forum that the <hourglassangelgirls.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 May 5, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 26, 2015 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@hourglassangelgirls.com. Also on May 5, 2015, the 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.
On May 6, 2015, an email message was received from Respondent stating that Complainant’s dispute should be with the entity from whom Respondent purchased the domain name.
Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 1, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 a formal response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant and its predecessor corporation have sold women’s shapeware under the HOURGLASS ANGEL mark continuously since 2007, through a website at the domain name <hourglassangel.com>. Complainant states that it has sold these products to customers in all 50 U.S. states and in 25 countries. A U.S. registration for Complainant’s HOURGLASS ANGEL mark issued in 2014.
Complainant contends that the disputed domain name <hourglassangelgirls.com>, registered by Respondent in 2015, is confusingly similar to Complainant’s mark; that Respondent has no rights or legitimate interests in the domain name; and that the domain name was registered and is being used in bad faith. In support thereof, Complainant states that Respondent is not commonly known by the domain name and has not been licensed or otherwise authorized by Complainant to use its mark. Complainant alleges that Respondent is using the domain name for a completing website that sells shapewear products similar to those offered by Complainant, and is diverting traffic from Complainant’s website for Respondent’s commercial gain. Complainant notes that the email address that appears on Respondent’s website, “Hourglassangels1@yahoo.com”, also incorporates Complainant’s mark.
B. Respondent
Respondent did not file a formal response. Respondent’s email message to the Forum stated as follows, in its entirety:
Yall don't need to be contacting me I bought my domain name from a company so if they had it for sale and I purchased you need to contact them and quit sending me emails damn!! It's a million other company's with similar names and domain names so why are they targeting me??? They should take that up with who I bought if from I'm a consumer
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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:
(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 formal 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.”).
The disputed domain name <hourglassangelgirls.com> is identical to Complainant’s registered trademark HOURGLASS ANGEL, but for the omission of a space and the addition of the generic term “girls” and the “.com” top-level domain. These alterations do not substantially diminish the similarity with Complainant’s mark. See, e.g., BBY Solutions, Inc. v. Thena Botanicals, FA 1333656 (Nat. Arb. Forum Aug. 8, 2010) (finding <geeksquadgirl.com> confusingly similar to GEEK SQUAD). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant’s mark without authorization. Respondent appears to be using the domain name in a manner that infringes upon Complainant’s trademark rights. Such use does not give rise to rights or legitimate interests. See, e.g., Florists' Transworld Delivery v. Linda Malek, FA 676433 (Nat. Arb. Forum June 6, 2006). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain names were registered and have been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
Respondent’s registration and use of a domain name incorporating Complainant’s mark for the purpose of selling products that compete directly with those offered by Complainant falls squarely within paragraph 4(b)(iv). Considering the similarity of the products offered by the parties, the distinctiveness and notoriety of Complainant’s mark, and the similarity of the domain name (and the email address advertised on Respondent’s website) to the mark, the Panel infers that Respondent is intentionally seeking to profit from confusion with Complainant’s mark. See Florists' Transworld Delivery, supra (finding bad faith under similar circumstances). The fact that a domain name registrar or other entity made the domain name available for purchase by Respondent does not absolve Respondent of its obligations under the registration agreement. See id. The Panel therefore finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hourglassangelgirls.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 1, 2015
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