The Complainant is Fashion Nova, Inc., United States of America, represented by Ferdinand IP, LLC, United States of America.
The Respondent is An Kurma, Samsung, Viet Nam. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 26, 2019. On November 27, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 27, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 28, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 30, 2019. The Center verified that the Complaint together with 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 2, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 22, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 26, 2019. The Center appointed Alistair Payne as the sole panelist in this matter on January 6, 2020. 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 since 2006 owned and operated an e-commerce website under the FASHION NOVA Mark at “www.fashionnova.com” from which it offers various goods and services including lines of popular fashion clothing. The Complainant owns various trademark registrations for FASHION NOVA including United States of America trade mark registration 4785854 registered on August 4, 2015. The disputed domain name was registered on June 12, 2018 and re-directs to a website selling popular fashionable clothing. 5. Parties’ Contentions A. Complainant The Complainant notes that it owns various trade mark registrations for its FASHION NOVA mark including the registration noted above. It says that the element of the disputed domain name before the Top-Level domain name only differs from its mark as a consequence of a slight misspelling in the letter “w” replacing the letter “v”. It says that the disputed domain name is confusingly similar in appearance, sound, connotation, and commercial impression to the Complainant’s FASHION NOVA mark. The Complaint is a case of typosquatting and the slight alteration does not distinguish the disputed domain name which is confusingly similar to its registered FASHION NOVA mark. The Complainant submits that the Respondent has no rights or legitimate interests in or to the FASHION NOVA Mark and says that the Respondent cannot claim to be known by such name. The Complainant alleges that the Complainant has never authorised the Respondent to use the FASHION NOVA mark, the Respondent has not been licensed to use the mark and there is no evidence that it has made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods and services. The Complainant submits that through extensive promotion and advertising, including social media, it has very successfully promoted its mark and the goods and services offered under it. This promotion has largely been undertaken by well-known social media “influencers” who have propelled its products to tens of millions of followers, such as in 2018 Google listed FASHION NOVA as the most searched for fashion brand. The Complainant says that it has established a valuable reputation and that the Respondent’s use of the disputed domain name is rather an attempt to divert consumers from the Complainant’s legitimate e‑commerce website and therefore cannot constitute a bona fide offering of goods and services. According to the Complainant, the appearance of the website accessible at the disputed domain name is similar to that of Complainant’s legitimate e-commerce website and, importantly, it offers clothing items for sale just as the Complainant’s site does. It says that as the website at the disputed domain name is no more than a reproduction of the appearance of Complainant’s e-commerce website, it is clear that the Respondent is using the disputed domain name in an intentional attempt to attract Internet users to his website for commercial gain, by creating a likelihood of confusion with the FASHION NOVA mark as to the source, sponsorship, affiliation, and/or endorsement of the website accessible at the disputed domain name under paragraph 4(b)(iv) of the Policy. In addition, the Complainant submits that the Respondent is using the disputed domain name to pass off its products as having an association with the Complainant when that is not the case and this will lead to a diversion of customers and a loss of goodwill. As a result, it says that the Respondent has registered and is using the disputed domain name 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 Complainant has demonstrated that it owns registered trade mark rights in its FASHION NOVA mark, in particular, under United States of America trade mark registration 4785854 registered on August 4, 2015. The Panel finds that the element of the disputed domain name before “.com” element differs from this mark by one letter, namely the letter “w” in place of the letter “v”. The Panel finds that this difference of one letter does not distinguish the disputed domain name from the Complainant’s mark and agrees with the Complainant that it is confusingly similar in appearance, sound, connotation, and commercial impression to the Complainant’s FASHION NOVA mark. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trade mark rights and the Complaint succeeds under this element of the Policy. B. Rights or Legitimate Interests The Complainant has submitted that the Respondent has no rights or legitimate interests in or to the FASHION NOVA Mark and submits that the Respondent cannot claim to be known by that name. It says that the Complainant has never authorised the Respondent to use the FASHION NOVA mark, that it has not licensed the Respondent to use the mark and that there is no evidence that it has made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods and services. The Complainant says that this is in effect a case of typosquatting in order to trade on the valuable reputation that it has established in its mark and business since 2006. It submits that the Respondent’s use of the disputed domain name is rather an attempt to divert consumers from the Complainant’s legitimate e-commerce website and therefore cannot constitute a bona fide offering of goods and services. The Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has failed to rebut this case and for this reason, and for the reasons set out under section C below, the Panel finds that the Complaint succeeds under this element of the Policy. C. Registered and Used in Bad Faith The Complainant claims that through extensive promotion and advertising, including social media since the commencement of its business in 2006, it has very successfully promoted its mark and the goods and services offered under it. This promotion appears to have been undertaken so successfully, in particular, by prominent popular culture social media “influencers”, that in 2018 Google listed FASHION NOVA as the most searched for fashion brand. It therefore appears to the Panel that by the date of registration of the disputed domain name in December 2018 and considering the confusing similarity of the disputed domain name to the Complainant’s FASHION NOVA mark, that the Respondent was well aware of the Complainant’s FASHION NOVA mark. The Respondent has used and is using the disputed domain name to resolve to a website that offers certain fashion clothing items for sale, which the Complainant asserts are competing products to some of those offered on its own website. The Panel accepts the Complainant’s submission in this regard and finds that such use amounts to intentionally attempt to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the affiliation or sponsorship of the Respondent’s website under paragraph 4(b)(iv) of the Policy and that this amounts to evidence of registration and use of the disputed domain name in bad faith. As a result, the Panel finds that the Respondent has both registered and is using the disputed domain name in bad faith and that the Complaint also succeeds under this element of the Policy. 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 Alistair Payne
Sole Panelist
Date: January 15, 2020
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