ShopStyle, Inc. v. Tuan Chen
Claim Number: FA1711001760231
Complainant is ShopStyle, Inc. ("Complainant"), represented by Brian M. Davis of VLP Law Group LLP, North Carolina, USA. Respondent is Tuan Chen ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <shop-style.net>, registered with Name.com, Inc.
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 November 28, 2017; the Forum received payment on November 28, 2017.
On November 30, 2017, Name.com, Inc. confirmed by email to the Forum that the <shop-style.net> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 December 1, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 21, 2017 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@shop-style.net. Also on December 1, 2017, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On December 26, 2017, 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 any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant provides an online search engine and related information services focused on fashion. Complainant has used the SHOPSTYLE mark and ShopStyle.com website in connection with this business since at least as early as 2006. The website receives an average of 3 million user searches per month, driving $1 billion in (presumably annual) gross retail sales. Complainant's SHOPSTYLE mark is registered in the United States and China; Complainant also claims common-law rights in the mark.
Respondent registered the disputed domain name <shop-style.net> through a privacy registration service in August 2017. The domain name results to a webpage that appears to be a copy of Complainant's website, featuring Complainant's mark and mimicking the appearance of Complainant's site. Complainant states that Respondent is not affiliated with Complainant in any way, and accuses Respondent of using the disputed domain name to profit by creating confusion with Complainant.
Complainant contends on these grounds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 is being 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 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 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 <shop-style.net> corresponds to Complainant's registered SHOPSTYLE mark, with the addition of an internal hyphen and the ".net" top-level domain. These additions do not substantially distinguish the domain name from Complainant's mark. See, e.g., Sugar Publishing, Inc. v. Jian Chen, FA 1437540 (Forum May 3, 2012) (finding <shop-styles.com> confusingly similar to SHOPSTYLE); Bottega Veneta Int'l S.A.R.L. v. Ks System / Ks Sysem, D2011-1343 (WIPO Sept. 23, 2011) (finding <bottegaveneta-style.net> confusingly similar to BOTTEGA VENETA). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name is nearly identical to Complainant's registered mark, and it is being used for a website that is a blatant rip-off of Complainant's site. Such use does not give rise to rights or legitimate interests. See, e.g., eBay Inc. v. Mohd. mohd.Danish / westernenterprises, FA 1756923 (Forum Dec. 1, 2017) (finding lack of rights or legitimate interests under similar circumstances); 3M Co. v. Mohammed Kapadia, FA 1652554 (Forum Jan. 7, 2016) (same); Sugar Publishing, Inc. v. Jian Chen, supra (same).
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 name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), 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 registered and is using a domain name that is nearly identical to Complainant's trademark for a website that imitates Complainant's site and is obviously intended to create and profit from confusion with Complainant. This behavior is indicative of bad faith registration and use under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. See, e.g., eBay Inc. v. Mohd. mohd.Danish / westernenterprises, FA 1756923 (Forum Dec. 1, 2017) (finding bad faith registration and use under similar circumstances); 3M Co. v. Mohammed Kapadia, FA 1652554 (Forum Jan. 7, 2016) (same). Respondent's use of a privacy registration service in an attempt to conceal his identity, though not itself dispositive, is a further indication of bad faith. See, e.g., Seiko Epson Corp. v. Ravi Singh, FA 1756508 (Forum Dec. 1, 2017). The Panel 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 <shop-style.net> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 4, 2018
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