Brooks Brothers Group, Inc. v. c/o BROOKSBRTHERS.COM / c/o BROOKSBROTHRS.COM / c/o BROOKSBORTHERS.COM
Claim Number: FA1210001469179
Complainant is Brooks Brothers Group, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is c/o BROOKSBRTHERS.COM / c/o BROOKSBROTHRS.COM / c/o BROOKSBORTHERS.COM (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <brooksbrthers.com>, <brooksbrothrs.com>, and <brooksborthers.com>, registered with Domain.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 A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 25, 2012; the National Arbitration Forum received payment on October 25, 2012.
On October 26, 2012, Domain.com, LLC confirmed by e-mail to the National Arbitration Forum that the <brooksbrthers.com>, <brooksbrothrs.com>, and <brooksborthers.com> domain names are registered with Domain.com, LLC and that Respondent is the current registrant of the names. Domain.com, LLC has verified that Respondent is bound by the Domain.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 October 26, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 15, 2012 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@brooksbrthers.com, postmaster@brooksbrothrs.com, and postmaster@brooksborthers.com. Also on October 26, 2012, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 29, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant’s Contentions
¶ 4(c)(iii), as the disputed domain names resolve to blank websites featuring no content or links.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 owns and uses the BROOKS BROTHERS mark, and other associated marks, for retail and mail order catalog services featuring clothing for men and boys, including suits, coats, vests, sweaters, trousers, and all related goods. Complainant supports its claims with evidence of its trademark holdings with the USPTO for BROOKS BROTHERS (e.g., Reg. No. 667,458 registered Sept. 23, 1958). The Panel finds that Complainant’s trademark holdings with the USPTO are sufficient for Complainant to establish rights in both the BROOKS BROTHERS mark pursuant to Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)).
Complainant further argues that Respondent’s <brooksbrthers.com>, <brooksbrothrs.com>, and <brooksborthers.com> domain names are confusingly similar to Complainant’s BROOKS BROTHERS mark, as the domain names either delete a single letter or transpose two letters of the mark. In comparing the disputed domain names with the BROOKS BROTHERS mark, the Panel notes that the <brooksbrthers.com> and <brooksbrothrs.com> domain names remove the letter “o” or the letter “e” from the mark, and that the <brooksborthers.com> domain name transposes the letters “r” and “o.” Based upon these minor typographical errors, the Panel finds that Respondent’s <brooksbrthers.com>, <brooksbrothrs.com>, and <brooksborthers.com> domain names are confusingly similar to Complainant’s BROOKS BROTHERS mark under Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”); see also Delta Corporate Identity, Inc. v. SearchTerms, FA 590678 (Nat. Arb. Forum Dec. 14, 2005) (concluding that the <dleta.com> domain name was confusingly similar to the complainant’s DELTA mark).
Thus, Complainant has satisfied Policy ¶ 4(a)(i).
Complainant argues that Respondent has not been commonly known by the disputed domain names based upon the WHOIS information and the fact that Respondent has not been sponsored by Complainant or authorized to use Complainant’s marks. The Panel notes that the WHOIS information for each domain name is identical to the next, save for the registrant information which contains the letters “c/o” followed by the individual domain name. The Panel finds that even with the disputed domain name being included in the WHOIS registrant information, Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that, although the respondent listed itself as “AIM Profiles” in the WHOIS contact information, there was no other evidence in the record to suggest that the respondent was actually commonly known by that domain name).
Further, Complainant argues that Respondent is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii), as the disputed domain names resolve to blank websites featuring no content or links. Upon reviewing the evidence submitted by Complainant, the Panel finds that Respondent’s failure to actively utilize the disputed domain names evidences Respondent’s failure to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the <brooksbrthers.com>, <brooksbrothrs.com>, and <brooksborthers.com> domain names under Policy ¶ 4(c)(iii). See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Thus, Complainant has also satisfied Policy ¶ 4 (a)(ii).
The Complainant has also satisfied Policy ¶4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <brooksbrthers.com>, <brooksbrothrs.com>, and <brooksborthers.com> domain names be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: December 12, 2012
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page