ModCloth, Inc. v. Ryan G Foo / PPA Media Services
Claim Number: FA1507001629107
Complainant is ModCloth, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Ryan G Foo / PPA Media Services (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <modclotch.com>, registered with Internet.bs Corp.
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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 16, 2015; the Forum received payment on July 16, 2015.
On July 21, 2015, Internet.bs Corp. confirmed by e-mail to the Forum that the <modclotch.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 July 23, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 12, 2015 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@modclotch.com. Also on July 23, 2015, 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 August 14, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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.
Complainant
Complainant owns the MODCLOTH mark through its numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,760,045, filed February 12, 2009, registered March 16, 2010). Complainant uses the MODCLOTH mark in connection with its online retail store services featuring women’s apparel. The disputed domain name is confusingly similar to the MODCLOTH mark, as Respondent has simply added the letter “c” to the mark and attached the generic top-level domain (“gTLD”) “.com” to the mark. The disputed domain name is a classic example of typosquatting.
Respondent lacks rights or legitimate interests in the <modclotch.com> domain name. Respondent is not commonly known by the disputed domain name, as demonstrated by the WHOIS information. Complainant has never licensed or authorized Respondent to use the MODCLOTH mark in any respect. Additionally, Respondent is not using the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to redirect Internet users to its website that displays links to third-party websites, some of which directly compete with Complainant’s business.
Respondent has registered and is using the disputed domain name in bad faith according to Policy ¶ 4(a)(iii). Respondent has listed the disputed domain name for sale, which demonstrates bad faith pursuant to Policy ¶ 4(b)(i). Respondent has engaged in a pattern of bad faith registration and use of disputed domain names according to Policy ¶ 4(b)(ii), evidenced by the numerous UDRP decisions found against Respondent. Respondent’s use of the disputed domain name to display hyperlinks to competitors of Complainant disrupts Complainant’s business and attracts Internet users to Respondent’s own website for commercial gain. Respondent’s typosquatting behavior is further evidence of bad faith under Policy ¶ 4(a)(iii).
Respondent
Respondent did not submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <modclotch.com> domain name.
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(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.”).
Complainant argues that the disputed domain name is confusingly similar to the MODCLOTH mark, as Respondent has simply added the letter “c” and attached the gTLD “.com” to the mark. Complainant argues that the disputed domain name is a classic example of typosquatting. Panels have established that the addition of a gTLD, such as “.com,” is irrelevant to Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Panels have also found that the addition of a single letter to a mark in a disputed domain name does not sufficiently distinguish a domain name from a registered mark under Policy ¶ 4(a)(i). See Amazon.com, Inc. v. Ikhizamah, D2002-1168 (WIPO Mar. 17, 2003) (holding that the <zamazon.com> domain name was confusingly similar to the complainant’s AMAZON.COM mark). As such, the Panel finds that the <modclotch.com> domain name is confusingly similar to the MODCLOTH mark pursuant to Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. 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 UDRP ¶ 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 AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims that Respondent lacks rights or legitimate interests in the disputed domain name. Complainant states that Respondent is not commonly known by the disputed domain name. Further, Complainant argues that Respondent is neither licensed nor authorized to use the MODCLOTH mark in any respect. The WHOIS information for the disputed domain name lists “Ryan G Foo” as registrant. Respondent has not submitted a response to refute any of Complainant’s contentions. In light of Complainant’s allegations and the available evidence, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant argues that Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). Rather, Complainant states that Respondent uses the disputed domain name to display a variety of hyperlinks to third-party businesses, some of which directly compete with Complainant. Some of the links include: “fashion trendy clothes” and “Women’s Clothing Sale.” The Panel therefore finds that Respondent has failed to use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”).
Complainant has proved this element.
Complainant argues that Respondent has registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). Complainant claims that Respondent has offered the disputed domain name for sale. Complainant points to the WHOIS information for the disputed domain name, which has an offer to sell the disputed domain name displayed at the top. The offer states, “ModClotCh.com is for sale! The owner of the domain you are researching has it listed for sale at $4,750.” The Panel agrees with Complainant’s argument and the available evidence, and finds that Respondent has engaged in bad faith under Policy ¶ 4(b)(i). See Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding that the attempted sale of a domain name is evidence of bad faith).
Complainant claims that Respondent has engaged in a pattern of bad faith registration and use of disputed domain names, as demonstrated by the numerous UDRP decisions against Respondent. Some of the decisions listed by Complainant against Respondent include: “Sundance Enterprises, Inc. v. Ryan G Foo / PPA Media Services” and “Staples, Inc. v. Ryan G Foo / PPA Media Services.” The Panel agrees that such evidence indicates a pattern of bad faith registrations and finds this is evidence of Respondent’s bad faith pursuant to Policy ¶ 4(b)(ii). See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”).
Complainant reiterates that Respondent uses the disputed domain name to display a variety of third-party hyperlinks, some of which are directly competing with Complainant. Complainant states that such behavior disrupts its business and is thus evidence of bad faith according to Policy ¶ 4(b)(iii). Past panels have agreed with this argument. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)). Therefore, the Panel finds that Respondent’s behavior constitutes bad faith pursuant to Policy ¶ 4(b)(iii).
Complainant argues that Respondent is attempting to attract Internet users to its own website for commercial gain. The Panel agrees that Respondent is capitalizing on the confusing similarity between its disputed domain name and the MODCLOTH mark, and finds that Respondent has acted in bad faith per Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Complainant argues that Respondent’s typosquatting is further evidence of bad faith under Policy ¶ 4(a)(iii). Respondent’s disputed domain name merely differs from the MODCLOTH mark by the addition of a single letter. Complainant argues that Respondent is attempting to capitalize on a simple typo. The Panel agrees that there is evidence of typosquatting, and finds this is further evidence of bad faith pursuant to Policy ¶ 4(a)(iii). See Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶ (a)(iii)).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <modclotch.com> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.), Panelist
Dated: August 17, 2015
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