Ross Stores, Inc. v. Loi Vuong / VVN LLC
Claim Number: FA1811001816933
Complainant is Ross Stores, Inc. (“Complainant”), represented by Michael Fortes of Kilpatrick Townsend & Stockton LLP, California, USA. Respondent is Loi Vuong / VVN LLC (“Respondent”), Oregon, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <rossonline.us>, registered with Google 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 16, 2018; the Forum received payment on November 16, 2018.
On November 20, 2018, Google LLC confirmed by e-mail to the Forum that the <rossonline.us> domain name is/are registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On November 26, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 17, 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@rossonline.us. Also on November 26, 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 December 18, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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 usTLD 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 usTLD Policy, usTLD 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 owns and operates the largest off-price apparel and home fashion chain in the United States. Complainant has rights in the ROSS mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,866,767, registered Jul. 27, 2004). Respondent’s <rossonline.us> domain name is confusingly similar to Complainant’s ROSS mark as Respondent merely adds the generic term “online” and a “.us” country code top-level domain (“ccTLD”) to the mark.
Respondent has no rights or legitimate interests in the <rossonline.us> domain name. Complainant has not authorized Respondent to use Complainant’s ROSS mark. Respondent is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Specifically, Respondent uses the disputed domain name to pass off as Complainant to offer competing goods and services.
Respondent registered and uses the <rossonline.us> domain name in bad faith. Respondent disrupts Complainant’s business and attempts to attract, for commercial gain, users to the disputed domain name where it impersonates Complainant to sell competing goods and services. Further, Respondent had knowledge of Complainant’s rights in the ROSS mark prior to registration and use of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns and operates an off-price apparel and home fashion chain in the United States. Complainant has rights in the ROSS mark through its trademark registrations with the USPTO (e.g., Reg. No. 2,866,767, registered Jul. 27, 2004). Respondent’s <rossonline.us> domain name is confusingly similar to Complainant’s ROSS mark as Respondent adds the generic term “online” and a “.us” country code top-level domain (“ccTLD”) to the mark.
Respondent registered the <rossonline.us> domain name on June 21, 2017.
Respondent has no rights or legitimate interests in the <rossonline.us> domain name. Respondent uses the disputed domain name to pass off as Complainant to offer competing goods and services.
Respondent registered and uses the <rossonline.us> domain name 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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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.”).
Complainant has rights in the ROSS mark under Policy ¶ 4(a)(i) based upon registration of the mark with the USPTO.
Respondent’s <rossonline.us> domain name is confusingly similar to the ROSS mark, as the name incorporates the mark in its entirely with the addition of the generic term “online” and a “.us” country code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <rossonline.us> domain name, Complainant has not authorized Respondent to use the ROSS mark. The WHOIS information of record identifies the registrant of the at-issue domain name as “Loi Vuong / VVN LLC.” Therefore, Respondent is not commonly known by the disputed domain name.
Respondent has failed to use the <rossonline.us> domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) or (iv). Instead that the name resolves to a competing website where Respondent impersonates Complainant. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Respondent uses the <rossonline.us> domain name to pass off as Complainant in order to compete with Complainant’s business. Use of a domain name to create a false impression of affiliation with a complainant in order to compete with and disrupt the complainant’s business shows bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . .“).
Respondent registered the <rossonline.us> domain name with actual knowledge of Complainant's rights in the mark, which is registration and use in bad faith under Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <rossonline.us> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 22, 2018
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