Brackish Bow Ties, LLC v. qi ye
Claim Number: FA2211002021881
Complainant is Brackish Bow Ties, LLC (“Complainant”), represented by Anne Fleeson of Womble Bond Dickinson (US) LLP, North Carolina, USA. Respondent is qi ye (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <brackishs.com>, registered with Name.com, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on November 29, 2022; Forum received payment on November 29, 2022.
On November 30, 2022, Name.com, Inc. confirmed by e-mail to Forum that the <brackishs.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. 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 December 1, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 21, 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@brackishs.com. Also on December 1, 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 26, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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.
A. Complainant
1. Respondent’s <brackishs.com> domain name is confusingly similar to Complainant’s BRACKISH mark.
2. Respondent does not have any rights or legitimate interests in the <brackishs.com> domain name.
3. Respondent registered and uses the <brackishs.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant, Brackish Bow Ties, LLC, holds a registration for the BRACKISH mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 6,015,268, registered March 17, 2020).
Respondent registered the <brackishs.com> domain name on September 1, 2022, and uses it to pass off as Complainant.
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”).
Respondent’s <brackishs.com> domain name simply adds an “s” to Complainant’s BRACKISH mark. The addition of a letter and gTLD fails to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Klein Tools, Inc. v chenxinqi, FA 1617328 (Forum July 6, 2018) (finding that the <klentools.com> domain name is confusingly similar to the KLEIN TOOLS mark as it contains the entire BANK OF AMERICA mark and merely omits the letter “l” and adds the “.com” generic top-level domain (“gTLD”)). Therefore, the Panel finds that Respondent’s <brackishs.com> domain name is confusingly similar to Complainant’s BRACKISH mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent lacks rights and legitimate interest in the disputed domain name as Respondent is not commonly known by the disputed domain name and has no license or consent to use the BRACKISH mark. The WHOIS information shows that Respondent is known as “qi ye.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Complainant also argues that Respondent uses the disputed domain name to falsely offer Complainant’s products on its resolving webpage. Using a domain name to offer a complainant’s products is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of a domain name under Policy ¶ 4(c)(iii). See Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”) Complainant provides screenshots showing that Respondent uses the disputed domain to purport to offer Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or 4(c)(iii)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent uses the disputed domain name to purport to offer Complaint’s products. Using a disputed domain name to pass off as a complainant constitutes bad faith disruption of Complainant’s business for commercial gain under Policy ¶¶ 4(b)(iii) and (iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Accordingly, the Panel finds bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant argues that Respondent had knowledge of Complainant’s rights in the BRACKISH mark when it registered the disputed domain name. To support this assertion, Complainant points to its trademark registrations along with the fact that Respondent uses the disputed domain name to pass off as Complainant. The Panel agrees and finds bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”).
Complainant also argues that Respondent engages in typosquatting by simply adding an “s” to its BRACKISH mark in the disputed domain name. The Panel agrees and finds further bad faith under Policy ¶ 4(a)(iii). See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”)
The Panel finds that Complainant has 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 <brackishs.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 27, 2022
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