Aquatalia IP LLC and RTW Retailwinds Acquisition LLC v. DANIU
Claim Number: FA2210002018403
Complainant is Aquatalia IP LLC and RTW Retailwinds Acquisition LLC (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is DANIU (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <aquatali.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to Forum electronically on October 31, 2022. Forum received payment on October 31, 2022.
On November 1, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to Forum that the <aquatali.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 November 7, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 28, 2022 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@aquatali.com. Also on November 7, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 5, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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.
Preliminary Issue: Multiple Complainants
Rule 3(a) states: “Any person or entity may initiate an administrative proceeding by submitting a complaint.” Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
The two Complainants in this matter, Aquatalia IP LLC and RTW Retailwinds Acquisition LLC, are related companies, since both are owned by Saadia Group, LLC. RTW Retailwinds Acquisition LLC is the registrant of the domain name <aquatalia.com> and Aquatalia IP LLC is the owner of the AQUATALIA trademark registrations in the United States. There is thus a sufficient nexus or link between them for each to claim to have rights to the <aquatali.com> domain name listed in the Complaint. Hence Aquatalia IP LLC and RTW Retailwinds Acquisition LLC are referred to collectively in this decision as “Complainant”.
A. Complainant
Aquatalia IP LLC owns the AQUATALIA mark, registered with the United States Patent and Trademark Office (“USPTO”). Respondent’s <aquatali.com> domain name is confusingly similar to the AQUATALIA mark.
Respondent has no rights or legitimate interests in the <aquatali.com> domain name. Respondent is not commonly known by the domain name, nor has Aquatalia IP LLC authorized, licensed, or otherwise permitted Respondent to use the AQUATALIA mark. Respondent does not use the domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent engages in typosquatting and hosts unrelated hyperlinks.
Respondent registered the typosquatted <aquatali.com> domain name in bad faith with actual knowledge of Complainant’s rights in the AQUATALIA mark and uses it in bad faith to host unrelated hyperlinks for Respondent’s commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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 Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has shown that Aquatalia IP LLC has rights in the AQUATALIA mark through registration with the USPTO (e.g. Reg. No. 4,349,879, registered June 11, 2013). The Panel finds Respondent’s <aquatali.com> domain name to be confusingly similar to that mark as it comprises the entire AQUATALIA mark without the final letter ‘a’ and adds the inconsequential “.com” generic top-level-domain (“gTLD”), which may be ignored. The <aquatali.com> domain name is also confusingly similar to RTW Retailwinds Acquisition LLC’s <aquatalia.com> domain name, which is used as Complainant’s website to promote clothing and accessories.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
Respondent registered the <aquatali.com> domain name on May 15, 2022, many years after the registration of the AQUATALIA trademark. It resolves to a website promoting gambling.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <aquatali.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The <aquatali.com> domain name is clearly a deliberately typosquatted version of Complainant’s distinctive AQUATALIA mark. There is no plausible explanation for the registration of the domain name other than to take advantage of the goodwill of Complainant. See Yahoo! Inc. and GeoCities v. Cupcakes, Cupcake City, Cupcake Confidential, Cupcake-Party, Cupcake Parade, and John Zuccarini, Case No. D2000-0777 (WIPO Oct. 2, 2000).
Typosquatting is independent evidence of bad faith registration and use of a domain name per Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1623825 (Forum July 20, 2015).
Further, the circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s AQUATALIA mark when Respondent registered the <aquatali.com> domain name and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the services promoted on that website. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <aquatali.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: December 6, 2022.
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