DECISION

 

Citizens of Humanity, LLC v. Diane Snyder

Claim Number: FA1709001748694

 

PARTIES

Complainant is Citizens of Humanity, LLC (“Complainant”), represented by Emily Bresler of Law Offices of Gary Freedman, California, USA.  Respondent is Diane Snyder (“Respondent”), Pennsylvania.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <agolde-jeans.com> (‘the Domain Name’), registered with PDR Ltd. d/b/a PublicDomainRegistry.com.

 

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

<<Dawn Osborne of Palmer Biggs IP>> as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on September 12, 2017; the Forum received payment on September 12, 2017.

 

On Sep 14, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <agolde-jeans.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name.  PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 September 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 4, 2017 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@agolde-jeans.com.  Also on September 14, 2017, 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 October 5, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

 

The Domain Name is confusingly similar to Complainant’s AGOLDE trade mark. Complainant designs manufactures and sells apparel, mostly jeans under its mark. It is the owner of US trade mark registration for AGOLDE applied for in 2010 and used since 2013 when it also began using AGOLDE.com.

 

Complainant has not given Respondent any authorisation to use Complainant’s mark. Respondent has never been commonly known by the Domain Name.

 

The Domain Name was registered in 2017. Respondent has no rights or interests in the Domain Name as it purports to sell authentic AGOLDE apparel, using the name of AGOLDE styles but the site is set up to defraud customers who when they order receive a completely different brand of jeans not connected to Complainant. This is registration and use of the Domain Name in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

  

FINDINGS

 

Complainant designs, manufactures and sells apparel, mostly jeans under its mark. It is the owner of US trade mark registration for AGOLDE applied for in 2010 with first use recorded as 2013. It  also owns AGOLDE.com.

 

The Domain Name registered in 2017 has been used to attract customers to buy jeans under the AGOLDE mark but a different brand of jeans not connected with Complainant is supplied upon purchase instead.

 

 

DISCUSSION

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:

 

 

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 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 (Forum July 31, 2000) (holding that 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.”).

 

 Identical and/or Confusingly Similar

 

The Domain Name in this Complaint combines Complainant’s AGOLDE mark (registered in the USA for clothing with first use recorded as 2013), a hyphen, the generic term ‘jeans’ (a product sold by Complainant) and the gTLD .com.

 

The addition of the generic word ‘jeans’ does not serve to distinguish the Domain Name from Complainant’s AGOLDE mark. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4 (a) (i). ) Nor does the addition of a hyphen. See Health Devices Corp. v Aspen STC, FA 158254 (Forum July , 2003)(The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4 (a)(i). )

 

The gTLD .com does not serve to distinguish the Domain Name from the AGOLDE mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (ForumJuly 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the  Panel finds that the Domain Name is confusingly similar to a mark in which Complainant has rights for the purpose of the Policy.

 

Rights or Legitimate Interests

 

Respondent does not appear to be commonly known by Complainant’s AGOLDE mark.  Complainant has not authorised Respondent to use this mark. The use of the Domain Name is commercial and so cannot be legitimate non commercial use.

 

Panels have found that a respondent is not using a disputed domain name for a bona fide offering of goods or services nor a legitimate non commercial or fair use if it uses the name to divert Internet users to a web site competing with Complainant under its mark. See Coryn Group Inc v Media Insight, FA 19895 9 (Forum Dec. 5, 2003). (The Panel may determine that Respondent lacks rights and legitimate interests in the domain name because ‘Respondent is competing in the same industry as Complainant  and under the same name’.) See Am. Tool & Machining, Inc. v EZ Hitch Inc, FA 113961 (Forum July 16, 2002)

 

It is clear from the evidence that Respondent has used the site attached to the Domain Name to purport to sell AGOLDE jeans, but in fact provides instead goods which are not connected with Complainant. Respondent is in the clothing industry. It is, therefore, more likely than not that Respondent was aware of the significance of the AGOLDE name and Complainant’s rights at the time of registration. The usage of Complainant’s style names on the site confirms this is the case. Use of Complainant’s mark to sell clothing not connected with Complainant is not fair as the site does not make it clear that there is no commercial connection with Complainant of the site attached to the Domain Name or the goods supplied by Respondent . As such, it cannot amount to the bona fide offering of goods and services.

 

Respondent has not answered this Complaint and has not provided any legitimate reason why she should be able to use Complainant’s trade marks in this way. As such the Panel  finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

 

As determined above Respondent's  use of the site is commercial and she is using it to make a profit from competing goods not associated with Complainant in a confusing manner. Respondent’s use of Complainant’s style names on the web site indicates that she was aware of Complainant’s rights at the time of registration. It seems clear that the use of  Complainant’s mark in the Domain Name would cause people to associate the website at the Domain Name with  Complainant and its business and goods.

 

 Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to her website by creating a likelihood of confusion with Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of the web site and the goods offered on it. This also appears designed to disrupt the business of a competitor. See Fitness International, LLC v Alistair Swodeck/Victor and Murray, FA 1506001623644 (Forum July 9, 2015) (where respondent offered the same services as Complainant and it was held this disrupted Complainant’s business under Policy 4 (b)(iii). See also CAN Financial Corporation v William Thomson/CAN Insurance, FA1401001541484 (Forum Feb 28, 2014)(finding that 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 competing site).

 

As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith under paragraphs 4 (b)(iii) and (iv) and has  satisfied the third limb of the Policy.

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <agolde-jeans.com> domain name be TRANSFERRED from Respondent to Complainant .

 

Dawn Osborne, Panelist

Dated:  October 10, 2017