VINCE, LLC v. Bbhd Ubwsw / Shuhua Zhang / Andwe Idwnq / Yingjiu Wu
Claim Number: FA2301002026225
Complainant is VINCE, LLC (“Complainant”), represented by Corsearch, Inc., Texas. Respondent is Bbhd Ubwsw / Shuhua Zhang / Andwe Idwnq / Yingjiu Wu (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com>, registered with Name.com, Inc..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or 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 January 3, 2023; Forum received payment on January 3, 2023.
On January 9, 2023, Name.com, Inc. confirmed by e-mail to Forum that the <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com> domain names are registered with Name.com, Inc. and that Respondent is the current registrant of the names. 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 January 17, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 2023 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@clothesvince.com, postmaster@vince-store.com, postmaster@vinceclothes.com, postmaster@vinceonlineshop.com. Also on January 17, 2023, 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 February 11, 2023, 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant alleges that the disputed domain names are effectively controlled by the same person and/or entity, operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that the disputed domain names are controlled by a single registrant because they all resolve to a site displaying Complainant’s mark, logo, and unauthorized versions of Complainant’s products. The Panel notes that the domain names are all registered with the same Registrar, have similar IP addresses, and the checkout pages at the resolving websites contain similar content and layouts. The Panel finds that the disputed domain names are likely controlled by the same entity and will refer to the registrants jointly as Respondent.
A. Complainant
1. Respondent’s <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com> domain names are confusingly similar to Complainant’s VINCE mark.
2. Respondent does not have any rights or legitimate interests in the <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com> domain names.
3. Respondent registered and uses the <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com> domain names in bad faith.
B. Respondent did not file a Response.
Complainant, Vince, LLC, offers apparel, footwear and accessories. Complainant holds a registration for the VINCE mark with multiple trademark organizations, including the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,929,250, registered on March 1, 2005).
Respondent registered the <clothesvince.com> domain name on July 13, 2022, the <vince-store.com> domain name on May 11, 2022, the <vinceclothes.com> domain name on June 20, 2022, and the <vinceonlineshop.com> domain name on December 22, 2021. Respondent uses these domain names (the “disputed domain names”) 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”).
The Panel finds that Complainant has rights in the VINCE mark through its registration with multiple trademark organizations including the USPTO. See Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”)
Respondent’s <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com> domain names all incorporate the VINCE mark and simply add the descriptive terms “online”, “shop”, “store”, and “clothes” along with “.com” gTLD. Under Policy ¶ 4(a)(i), adding a descriptive word, a hyphen and the “.com” gTLD does not distinguish a disputed domain name from a mark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”) The Panel finds that Respondent’s <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com> domain names are confusingly similar to Complainant’s VINCE 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 has no right or legitimate interests in the <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com> domain names, as Respondent is not commonly known by them. Complainant has not authorized or licensed Respondent to use its VINCE mark. The WHOIS information identifies Respondent as “Bbhd Ubwsw / Shuhua Zhang / Andwe Idwnq / Yingjiu Wu.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names, and thus has no rights under Policy ¶ 4(c)(ii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”)
Complainant asserts that Respondent does not use the <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com> domain names for a bona fide offering of goods or services or a noncommercial or fair use. Using a disputed domain name to pass off as a complainant is not a bona fide offering of goods or services or a noncommercial or fair use. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Complainant provides screenshots of the websites resolving from the disputed domain names, which display Complainant’s VINCE mark and purport to offer counterfeit or unauthorized versions of Complainant’s products. The Panel finds that this is not a bona fide offering of goods or services or a noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant asserts that Respondent registered and uses the <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com> domain names in bad faith by disrupting Complainant’s business and attracting users for commercial gain. Under Policy ¶ 4(b)(iii), passing off as a complainant at a resolving website is a disruption of a complainant’s business, evincing bad faith registration and use. See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)). Under Policy ¶ 4(b)(iv), using a disputed domain name to attract users for its commercial gain also constitutes bad faith. See MySpace, Inc. v. Myspace Bot, FA 672161 (Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme). Accordingly, the Panel finds bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant contends that Respondent registered the <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com> domain names with actual knowledge of Complainant’s rights in the VINCE mark. Since Respondent uses the disputed domain names to pass off as Complainant, the Panel agrees and finds further bad faith under Policy ¶ 4(a)(iii). See WordPress Foundation v. mich delorme / mich d dots tlds, FA1410001584295 (Forum, Nov. 25, 2014) (“Because Respondent here relies on the WORDPRESS mark in the disputed domain name and also makes use of Complainant’s services at the resolving page, the Panel finds that Respondent had actual knowledge of Complainant’s mark, and that such knowledge evidences Policy ¶ 4(a)(iii) bad faith.”)
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 <clothesvince.com>, <vince-store.com>, <vinceclothes.com>, and <vinceonlineshop.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 12, 2023
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