The Complainant is Tommy Bahama Group, Inc., United States of America (“United States”), represented by Kilpatrick Townsend & Stockton LLP, United States.
The Respondent is Russell Pike, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 2, 2020. On March 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 3, 2020, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 4, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 24, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 25, 2020. The Center appointed Carol Anne Been as the sole panelist in this matter on March 30, 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 asserts as follows: The Complainant has used the TOMMY BAHAMA mark for island-inspired apparel since 1993, and has expanded its line of products under the TOMMY BAHAMA mark to include eyewear, watches, wallets, bedding, personal care products, and home furnishings. It operates more than 154 retail stores under the mark in the United States and 4 international stores, and sells its branded products through other well-known retail chains. It also operates 17 restaurant-retail locations in the United States and Japan. The Complainant operates a website at “www.tommybahama.com”. The Complainant has spent a significant amount of money promoting and marketing its goods and services under the TOMMY BAHAMA mark, and these efforts have resulted in significant sales. The Complainant owns trademark rights in the TOMMY BAHAMA mark, with over 38 trademark registrations that include the mark in the United States, and additional foreign trademark registrations that include the mark. The Complainant’s earliest United States registration of the TOMMY BAHAMA mark was issued in 1993 (Registration Number 1802812). To the Complainant’s knowledge, no other person or entity anywhere in the world has a legitimate right to use the TOMMY BAHAMA mark. The Disputed Domain Name, The Disputed Domain Name resolves to a page showing that the Disputed Domain Name is parked. 5. Parties’ Contentions A. Complainant The Complainant alleges that the Disputed Domain Name is identical or confusingly similar to the Complainant’s well-known TOMMY BAHAMA mark in which it has prior rights. The Complainant provides evidence that the term “boomer” is short for the phrase “baby boomer”, which refers to individuals born between 1945 and 1965. The Complainant alleges that consumers are likely to view the Disputed Domain Name as referring to goods and services offered under the TOMMY BAHAMA mark that are directed to “boomers.” The Complainant alleges that the Respondent had constructive knowledge of the Complainant’s trademark rights due to its United States trademark registrations for the TOMMY BAHAMA mark. The Complainant alleges that the Respondent is not commonly known as TOMMY BAHAMA or doing business under that name, and that use of the Disputed Domain Name to resolve to a page showing the Disputed Domain Name is parked is not in connection with a bona fide offering of goods or services and is not legitimate commercial speech. The Complainant alleges that since the Respondent has no relationship with the Complainant, the Respondent cannot demonstrate or establish rights or a legitimate interest in use of the Disputed Domain Name. The Complainant alleges that the Respondent has registered and is using the Disputed Domain Name in bad faith for commercial gain and to benefit from the goodwill associated with the Complainant’s TOMMY BAHAMA mark. The Complainant alleges that registration of the Disputed Domain Name shows opportunistic bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings By failing to respond to the Complaint, the Respondent did not avail himself of the opportunity to explain his actions or deny the Complainant’s allegations. While the Complainant carries the burden of proof in this proceeding, the Panel may draw inferences from the Respondent’s failure to respond. See Rules, paragraph 14(b); see, e.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. A. Identical or Confusingly Similar The Complainant has rights in the TOMMY BAHAMA mark that predate registration of the Disputed Domain Name in 2020. The Disputed Domain incorporates the entirety of the TOMMY BAHAMA mark. The Disputed Domain name also adds the term “boomer” after the TOMMY BAHAMA mark. The Complainant alleges that the Disputed Domain Name as a whole refers to goods or services under the TOMMY BAHAMA mark that are directed to the “Baby Boomer” generation. Whatever its meaning in the Disputed Domain Name, the addition of the term “boomer” does not avoid the confusing similarity of the Disputed Domain Name to the TOMMY BAHAMA mark. The Panel finds that the Disputed Domain Name is identical or confusingly similar to the TOMMY BAHAMA mark in which the Complainant has rights, under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Respondent does not appear to be making a legitimate noncommercial or fair use of the Disputed Domain Name. The Respondent has not provided any evidence that it has been commonly known by a name corresponding to the Disputed Domain Name, or that it has made demonstrable preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services. In the absence of evidence from the Respondent, the Panel finds that the Respondent lacks rights or legitimate interests in the Disputed Domain Name, under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Disputed Domain Name was registered long after the Complainant established trademark rights and widespread recognition of its TOMMY BAHAMA mark for apparel and other goods and services. The TOMMY BAHAMA registrations provided constructive notice of the Complainant’s prior rights at the time the Disputed Domain Name was created. These facts point to registration of the Disputed Domain Name in bad faith. The Disputed Domain Name is used to resolve to a page showing that the Disputed Domain Name is parked. Although its contents were not discussed by the Complainant, a printout of the parked page posted by the Registrar was provided as an annex to the Complaint. The parked page includes links to “Tommy Bahama Clothing” and other “Tommy Bahama” products, as well as to “Sofa Sets”, “Womens Clothing”, and “Bahama”. These links are likely to result in commercial gain for the Registrar and/or the Respondent, which is evidence that the Respondent is trading on the goodwill of the Complainant’s trademarks to attract Internet users, presumably for the Respondent’s own commercial gain. See Credit Karma, Inc. v. Super Privacy Service c/o Dynadot, Case No. D2017-1030; Skyscanner Limited v. Kadeer Razeen,WIPO Case No. D2019-2825. Even if use of the Disputed Domain Name to resolve to a parked page were viewed as passive holding or non-use of the Disputed Domain Name, use in bad faith still may be found from a totality of the circumstances. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 3.3. The Respondent did not respond to the Complaint and did not provide evidence or arguments to counter the Complainant’s allegations of bad faith. There is nothing in the record to suggest the Respondent registered or uses the Disputed Domain Name in good faith. The Panel finds that the Disputed Domain Name was registered and is being used in bad faith, under paragraphs 4(a)(iii) and 4(b)(iv) 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 Carol Anne Been
Sole Panelist
Date: April 13, 2020
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