The Complainant is B. Lane, Inc. d/b/a Fashion To Figure of New York City, New York, United States of America, represented by Lowenstein Sandler PC, United States of America.
The Respondent is Viktor of Buffalo, New York, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on April 5, 2013. On April 5, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 6, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 11, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was May 1, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 3, 2013.
The Center appointed William F “Bill” Hamilton as the sole panelist in this matter on May 10, 2013. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant sells women’s clothing. The Complainant registered the mark FASHION TO FIGURE (the “Mark”) in 2007 with the United States Patent and Trademark Office. The Complainant has used the Mark since at least 2003. The Complainant owns the domain name . In 2012, the Complainant generated revenues approximating USD 15 million. On March 8, 2013, industry press reported a significant investment in the Complaint by a private equity firm.
The disputed domain name was registered by the Respondent on March 9, 2013. 5. Parties’ Contentions A. Complainant
The Complainant asserts that the disputed domain name is identical to its Mark, that the Respondent has no bona fide or legitimate interest in the Mark or the disputed domain name, and that Respondent registered and is using the disputed domain name in bad faith to lure unsuspecting visitors to its website to increase its visitor count thereby enhancing the sale value of the disputed domain name. Complainant also contends that the disputed domain name resolves to a website that contains metadata designed to “optimize” the likelihood that Internet searches seeking the Complainant will return the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name is identical to the Complainant’s Mark with the exception that the words of the Mark are collapsed. This difference and the addition of “.org” to the Mark are immaterial in this case. See Merck KGaA v. Douglas Draper,WIPO Case No. D2003-0203 ( is confusingly similar to MERCK mark).
The Complainant has established that the disputed domain name is identical or confusingly similar to the Complainant’s Mark. B. Rights or Legitimate Interests
The Complainant disavows any commercial relationship with the Respondent whereby the Respondent was licensed in or in any manner authorized to use the Complainant’s Mark or to register and use the disputed domain name. The Respondent is clearly using the disputed domain name for commercial purposes as the website the disputed name resolves to features prominent banner and skyscraper third party advertisements. The Complainant has also established for the purposes of this proceeding that prior to the registration of the disputed domain name, the Respondent had not conducted any bona fide business under the Mark. Moreover, the Respondent has failed to come forward with any demonstration or evidence of rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has established that the Respondent lacks any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The Complainant points to numerous indicia of bad faith: (1) the registration of the disputed domain name following the public announcement of the equity firm investment in the Complainant; (2) the Respondent’s suspicious use of the single word name “Viktor” when registering the disputed domain name; (3) the Respondent’s lack of an address that can be located on Google maps; (3) the virtually identity of the disputed domain name with the Complainant’s domain name; and (4) the discussions, postings, advice, and announcements at the website the disputed domain name resolves to are about, related to, or concerning plus sized clothing —the very type of products featured by Complainant. The Panel also notes that the Respondent failed to answer the Complaint and that the physical address provided by the Respondent when registering the disputed domain name did not exist when the Center attempted delivery the Complaint. It is also clear to the Panel that the Respondent must have been aware of the Complainant’s Mark and website “www.” when registering the disputed domain name for a website featuring information and purported discussions and “blogging” about plus size clothing. Although the script is different the script used by Complainant, the name of the Respondent’s website is “Fashion to Figure” and the text is prominently featured in the websites source code. It is also apparent to the Panel that a visitor lured to the Respondent’s website by the disputed domain name may in fact believe the website and its content is sponsored by the Respondent. The Respondent’s website also offers publicity links and is devoid of any information as to how to contact the Respondent or any webmaster. These circumstances taken in their totality give rise to the settled conclusion that the disputed domain name was registered and is being used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
William F “Bill” Hamilton
Sole Panelist
Date: May 24, 2013
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