The Complainant is Affliction Holdings, LLC of Seal Beach, California, United States of America, represented by JK Legal Services (Jan Kaufman), United States of America.
The Respondent is Indrahvan Eer of Calgary, Alberta, Canada. 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 November 21, 2013. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 22, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on December 12, 2013.
The Center verified that the amended 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 December 12, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was January 1, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 6, 2014.
The Center appointed Michael J. Spence as the sole panelist in this matter on January 17, 2014. 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 has for many years manufactured and sold clothing products under the trade mark AFFLICTION, for which the Complainant holds many registrations dating back as early as 2006. There is no relationship or agreement between the Complainant and the Respondent. The Respondent registered the disputed domain name on May 20, 2013 and hosts a website on which it sells, amongst other things, purported counterfeit clothing under the AFFLICTION trade mark. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to its trade mark; that the Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name has been registered and is being used in bad faith. 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 contains the Complainant’s trade mark in its entirety. The addition of a term denoting one of the categories of good for which the mark is registered and a geographical term does nothing to prevent the disputed domain name from being identical or confusingly similar to the trade mark. Indeed, it only increases the likelihood of confusion.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy in relation to the disputed domain name. B. Rights or Legitimate Interests
It is for the Complainant to establish, at least prima facie that the Respondent has no rights or legitimate interests in the disputed domain name (Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455, Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110).
In this case, confusion is almost inevitable. The only apparent use of the disputed domain name is for the operation of a website with no indication that there is no relationship between the Complainant and the Respondent, and many of the goods sold are apparently counterfeit. Such use cannot give rise to rights or legitimate interests in the disputed domain name.
The Panel therefore finds that the Complainant has established the second element of paragraph 4(a) of the Policy in relation to the disputed domain name. C. Registered and Used in Bad Faith
Given the strong likelihood of confusion that there exists a relationship between the Complainant and the Respondent, the Respondent appears to be profiting from confusion created by the disputed domain name. Moreover, it must have been apparent at the time of registration that such confusion would be inevitable. Knowingly profiting from confusion created between a complainant's trade mark and a disputed domain name is a classic case of registration and continued use in bad faith. This finding of bad faith is strengthened by the fact that many of the goods sold on the Respondent’s website are apparently counterfeit.
The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the Policy in relation to the disputed domain name. 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.
Michael J. Spence
Sole Panelist
Date: January 27, 2013
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