RH US, LLC v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1805001788872
Complainant is RH US, LLC ("Complainant"), represented by Michael J. McCue, Nevada, USA. Respondent is Domain Admin / Whois Privacy Corp. ("Respondent"), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <restorationhardware.co>, registered with TLD Registrar Solutions 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 25, 2018; the Forum received payment on May 25, 2018.
On Jun 1, 2018, TLD Registrar Solutions Ltd. confirmed by e-mail to the Forum that the <restorationhardware.co> domain name is registered with TLD Registrar Solutions Ltd. and that Respondent is the current registrant of the name. TLD Registrar Solutions Ltd. has verified that Respondent is bound by the TLD Registrar Solutions Ltd. 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 June 4, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 25, 2018 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@restorationhardware.co. Also on June 4, 2018, 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 June 26, 2018, 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
Together with its parent and affiliated companies, Complainant designs, manufactures, and sells furniture and related products under the RESTORATION HARDWARE mark, through retail stores and outlets, catalogs, and the Internet. Complainant has used the mark since 1979 and owns multiple U.S. registrations for the mark; Complainant also asserts common-law rights in the mark arising from longstanding and widespread use.
The disputed domain name <restorationhardware.co> was registered in July 2010. The domain name resolves to a landing page consisting of "related links" to categories of furniture, including a link titled "Restoration Hardware Furniture." Complainant alleges that Respondent registered the domain name with full knowledge of Complainant's mark, intending to exploit the goodwill associated with the mark, and that there is no plausible circumstance in which Respondent could legitimately use the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical 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 <restorationhardware.co> omits the space in Complainant's registered RESTORATION HARDWARE mark and appends the ".co" top-level domain. For purposes of the Policy, the disputed domain name is identical to Complainant's mark. See, e.g., Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (finding <rockwellautomation.co> identical to ROCKWELL AUTOMATION); RH US, LLC v. Jonathan Wimmel, FA 1719390 (Forum Apr. 4, 2017) (finding <restorationhardware.furniture> identical to RESTORATION HARDWARE). The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights.
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 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its only apparent use has been for a parking page consisting of what presumably are pay-per-click links. Such use is not indicative of rights or legitimate interests. See, e.g., Coachella Music Festival, LLC v. Md Opu Ahmed, FA 1738306 (Forum July 27, 2017) (finding lack of rights or legitimate interests where domain name incorporating mark was registered through privacy service and sole use was for parked pay-per-click link page); Fareportal Inc v. Anirban Das / Search Engine Pundits, FA 1718919 (Forum Apr. 11, 2017) (finding lack of rights or legitimate interests where sole use was parking page); Toronto-Dominion Bank v. Anthony Cinelli, FA 1716316 (Forum Mar. 7, 2017) (finding lack of rights or legitimate interests where sole use was for registrar-generated parking page that included links to competitors of complainant).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed 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 has been 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's registration of a domain name corresponding to Complainant's well-known mark, together with its use of the domain name to display pay-per-click links, is indicative of bad faith under the Policy. Under the circumstances, the Panel infers that Respondent was aware of Complainant or its mark at all relevant times, and that Respondent registered the domain name with the intent to use it to profit from confusion with Complainant's mark. See, e.g., Toronto-Dominion Bank v. Anthony Cinelli, supra. (inferring bad faith registration and use under similar circumstances). Respondent's use of a privacy registration service in an attempt to conceal its identity, though not itself dispositive, is a further indication of bad faith. See, e.g., Coachella Music Festival, LLC v. Md Opu Ahmed, supra.
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 <restorationhardware.co> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 2, 2018
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