Stitch Fix, Inc. v. zhang wei
Claim Number: FA2201001979330
Complainant is Stitch Fix, Inc. ("Complainant"), represented by Jered E. Matthysse of Pirkey Barber PLLC, Texas, USA. Respondent is zhang wei ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <stitchfix.co>, registered with Dynadot, 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 E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 6, 2022; the Forum received payment on January 6, 2022.
On January 7, 2022, Dynadot, LLC confirmed by email to the Forum that the <stitchfix.co> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 January 10, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 31, 2022 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@stitchfix.co. Also on January 10, 2022, 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 February 3, 2022, 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 is an online fashion retailer and personal shopping company. Complainant has used the STITCH FIX mark since 2011 in connection with retail, shopping, and consulting services. Complainant owns multiple United States trademark registrations for STITCH FIX in standard character form, the oldest of which issued in 2012.
The disputed domain name <stitchfix.co> was registered in May 2017. Complainant states that it is being used to generate revenue when Internet users mistakenly enter the disputed domain name instead of Complainant's own <stitchfix.com> domain name, by redirecting such users to Complainant's own website via an affiliate tracking link. Complainant states further that Respondent is not commonly known by the disputed domain name and has not been licensed or otherwise permitted to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <stitchfix.co> is identical or confusingly similar to its STITCH FIX mark; that Respondent lacks 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 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <stitchfix.co> corresponds to Complainant's registered STITCH FIX trademark, omitting the space and appending the ".co" top-level domain. The omission or spaces or addition of a top-level domain is normally irrelevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., InTown Suites Management, Inc. v. Zhang Wei, FA 1964174 (Forum Oct. 25, 2021) (finding <intownsuites.co> identical to INTOWN SUITES); see also Stitch Fix, Inc. v. Eric Colson / stitchfixhelp, FA 1770359 (Forum Mar. 4, 2018) (finding <stitchfixhelp.com> confusingly similar to STITCH FIX). The Panel considers the disputed domain name to be 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 Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole apparent use has been to attract users seeking Complainant and redirect them to Complainant's website, generating affiliate referral commissions for Respondent. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., HRB Innovations, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1880758 (Forum Feb. 28, 2020) (finding lack of rights or interests arising from use of domain name to redirect users to complainant's website via unauthorized affiliate links); Staples, Inc. & Staples the Office Superstores, LLC v. FCS Holdings Corp / Carolina Rodrigues, FA 1428752 (Forum Apr. 4, 2012) (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 a domain name obviously intended to create confusion with Complainant's mark, and is using it to exploit Complainant's affiliate referral program for Respondent's commercial gain. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., HRB Innovations, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, supra (finding bad faith in similar circumstances); Staples, Inc. & Staples the Office Superstores, LLC v. FCS Holdings Corp / Carolina Rodrigues, supra (same). The Panel also notes Respondent's history of bad faith registration and use of domain names incorporating well-known trademarks. See, e.g., InTown Suites Management, Inc. v. Zhang Wei, supra (ordering transfer of <intownsuites.co>); SPTC, Inc. & Sotheby's v. Zhang Wei / 张伟 / Xu Shuai Wei / 徐帅伟, FA 1936089 (Forum Apr. 13, 2021) (ordering transfer of <sothrbys.com> and <sthebys.com>); Cardinal Health, Inc. v. zhangwei / zhang wei, FA 1908971 (Forum Sept. 17, 2020) (ordering transfer of <cardinalhealth.co>); Google LLC v. ZhangWei / S Jon Grant / Jerry, FA 1896568 (Forum July 21, 2020) (ordering transfer of <googleclassroom.co> and similar domain names). 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 <stitchfix.co> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 4, 2022
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