Paige, LLC v. Jinjin Xu
Claim Number: FA2305002043267
Complainant is Paige, LLC (“Complainant”), represented by Rod S. Berman of JEFFER MANGELS BUTLER & MITCHELL LLP, USA. Respondent is Jinjin Xu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <jeanspaige.com>, registered with Gname.com Pte. Ltd..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on May 4, 2023; Forum received payment on May 4, 2023. The Complaint was submitted in English.
On May 5, 2023, Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <jeanspaige.com> domain name is registered with Gname.com Pte. Ltd. and that Respondent is the current registrant of the name. Gname.com Pte. Ltd. has verified that Respondent is bound by the Gname.com Pte. Ltd. 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 May 9, 2023, Forum served the Complaint and all Annexes, including a Chinese and English language Written Notice of the Complaint, setting a deadline of May 30, 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@jeanspaige.com. Also on May 9, 2023, the Chinese and English 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 June 1, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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.
Notwithstanding that the Registration Agreement is written in Chinese, pursuant to UDRP Rule 11(a) the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstances of the present case including Respondent’s failure to respond, the Panel finds that the proceeding should be in English.
A. Complainant
Complainant, Paige, LLC, manufactures and distributes denim and apparel products, as well as related accessories.
Complainant asserts rights to the PAIGE mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <jeanspaige.com> domain name is confusingly similar to Complainant’s mark as it contains the PAIGE mark in its entirety, merely adding the generic term “jeans”, and the generic top-level domain “.com” to form the at-issue domain name.
Respondent does not have rights or legitimate interests in the <jeanspaige.com> domain name. Respondent is not licensed or authorized to use the PAIGE mark and is not commonly known by the at-issue domain name. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to offer counterfeit goods for sale.
Respondent registered and uses the <jeanspaige.com> domain name in bad faith. Respondent registered and uses the disputed domain name to pass off as Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the PAIGE mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the PAIGE trademark.
Respondent uses the at-issue domain name to address an online store that mimics Complainant’s genuine website and that perpetrates fraud by luring consumers into sending money and disclosing personal and financial information based on the false expectation that the consumers will, in return, receive high-quality PAIGE branded products at discounted prices.
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 at-issue domain name is confusingly similar to a mark in which Complainant has rights.
Complainant’s USPTO trademark registration for PAIGE sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <jeanspaige.com> domain name is confusingly similar to Complainant’s PAIGE mark. The domain name consists of Complainant’s entire trademark prefixed by the suggestive descriptive term “jeans” with all followed by the “.com” top-level domain name. The differences between the at-issue <jeanspaige.com> domain name and Complainant’s PAIGE trademark are insufficient to distinguish the domain name from Complainant’s mark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <jeanspaige.com> domain name is confusingly similar to PAIGE. 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).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and as discussed below there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name. See Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and “Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.”).
The WHOIS information for <jeanspaige.com> indicates that “Jinjin Xu” is the domain name’s registrant and there is nothing in the record showing that Respondent is commonly known by the <jeanspaige.com> domain name. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(iii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)).
Respondent uses the confusingly similar <jeanspaige.com> domain name to address a website that pretends to be sponsored by Complainant and there offers products for sale that appear to be identical or similar to products provided by Complainant under its PAIGE trademark. The domain name and its associated website deceives consumers into sending money and disclosing personal and financial information based on the false expectation that the consumers will, in return, receive high-quality PAIGE branded products at discounted prices. Respondent’s use of the at-issue domain name to address to a website that sells products branded with Complainant’s mark, whether counterfeit or legitimate products being resold without authorization, is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Wolverine World Wide, Inc. v. Fergus Knox, FA 1627751 (Forum Aug. 19, 2015) (finding no bona fide offering of goods or legitimate noncommercial or fair use existed where Respondent used the resolving website to sell products branded with Complainant’s MERRELL mark, and were either counterfeit products or legitimate products of Complainant being resold without authorization); see also eLuxury.com Inc. v. WangJunJie, FA 1075554 (Forum Nov. 30, 2007) (concluding that the sale of counterfeit products is evidence that the respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name.
The at-issue domain name was registered and used in bad faith. As discussed below without being exhaustive, there is sufficient evidence to allow the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above regarding rights and legitimate interests, Respondent uses its confusingly similar domain names to address a website dressed to look as if were Complainant’s genuine website where Respondent passes itself off as Complainant and offers counterfeit or unauthorized products that compete with Complainant’s PAIGE offering. Such use of the domain name is disruptive to Complainant’s business and capitalizes on the confusion Respondent creates between Complainant’s trademark and Respondent’s domain name and associated website. Respondent thus registered and is using the at-issue domain names in bad faith pursuant to Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (finding the respondent registered and used the at-issue domain name in bad faith because it used the name to pass off as the complainant and offer for sale competitive, counterfeit goods); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with 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 <jeanspaige.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 2, 2023
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