The Complainant is Dress Barn, Inc., United States of America (“United States”), represented by Demys Limited, United Kingdom.
The Respondent is Registration Private, Domains by Proxy, LLC, United States / Carolina Rodrigues, Fundacion Comercio Electronico, Panama. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2021. On June 14, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 15, 2021, 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 June 16, 2021 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 June 17, 2021. 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 June 18, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 8, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 15, 2021. The Center appointed Kaya Köklü as the sole panelist in this matter on July 20, 2021. 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 is an online retailer of clothing, shoes and accessories with its registered seat in the United States. It was established in 1962 and moved to an online-only business model in 2019. The Complainant is the owner of the United States Trademark Registration No. 1323805 for DRESS BARN (registered on March 5, 1985), (Annex 7 to the Complaint). The Complainant also owns and operates its official website at “dressbarn.com” (Annex 3 to the Complaint). The Respondent seems to be an individual from Panama. The Panel observes that the Respondent has been party to almost 200 previous UDRP domain name disputes. The Panel has conducted a random search of these disputes and observes that all of the reviewed cases were decided against the Respondent. The disputed domain name was registered on May 3, 2021. The screenshots, as provided by the Complainant in the case file, show that the disputed domain name resolves to a website presenting a virus alert, indicating an infection of the computer with a virus and offering the user an antivirus software and computer scan (Annex 5 to the Complaint). 5. Parties’ Contentions A. Complainant The Complainant requests the transfer of the disputed domain name. The Complainant is of the opinion that the disputed domain name is confusingly similar to its DRESS BARN trademark. Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is rather argued that the disputed domain name falsely suggests that there is some official or authorized link between the Complainant and the Respondent. Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent must have been well aware of the Complainant’s DRESS BARN trademark, when registering and using the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied: (i) the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complainant’s contentions. Stanworth Development Limited v. E Net Marketing Ltd.,WIPO Case No. D2007-1228. However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the consensus views captured therein. A. Identical or Confusingly Similar To begin with, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights in DRESS BARN (Annex 7 to the Complaint). The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s registered DRESS BARN trademark. As stated at section 1.9 of the WIPO Overview 3.0, where the relevant disputed domain name consists of a common, obvious, or intentional misspelling of a trademark is considered to be confusingly similar, if the disputed domain name contains sufficiently recognizable aspects of the relevant trademark. In the present case, the Panel notes that disputed domain name incorporates a confusingly similar misspelling of the Complainant’s DRESS BARN trademark by replacing the letter “a” by the adjacent keyboard letter “z”. In view of the Panel, this still makes the Complainant’s DRESS BARN trademark recognizable within the disputed domain name. Hence, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s DRESS BARN trademark. Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name. While the burden of proof on this element remains with the Complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. See, Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c). With its Complaint, the Complainant has provided prima facie evidence that the Respondent has no rights or legitimate interests, particularly no license to use the Complainant’s DRESS BARN trademark in a confusingly similar way within the disputed domain name. In the absence of a Response, the Respondent has failed to demonstrate any of the nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or provide any other evidence of a right or legitimate interest in the disputed domain name. The Panel is rather convinced that the Respondent deliberately has chosen the disputed domain name in order to cause confusion with the Complainant’s trademark among Internet users. Bearing in mind that the Respondent uses the disputed domain name in order to redirect Internet users to a website presenting a virus alert, indicating an infection of the computer with a virus and offering the user an antivirus software and computer scan (Annex 5 to the Complaint), the Panel does not see sufficient basis for assessing any kind of bona fide offering of goods or services by the Respondent. As a conclusion, the Panel finds that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith It is obvious to the Panel that at the date of registration of the disputed domain name, the Respondent was well aware of the Complainant’s DRESS BARN trademark. The Panel is further convinced that the Respondent deliberately registered a non-dictionary misspelling of the Complainant’s trademark in order to create confusion among Internet users for illegitimate and bad faith purposes. In fact, the Panel cannot conceive of any plausible and legitimate use of the disputed domain name that would be in good faith, except with an authorization of the Complainant. Further, the Respondent’s failure to respond to the Complaint supports the conclusion that it has registered and is using the disputed domain name in bad faith. Bearing also in mind that the Respondent has been party to almost 200 previous UDRP domain name disputes, the Panel is convinced that this is a typical typosquatting case, which the UDRP was designed to stop. In view of the Panel, the disputed domain name was registered and is being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) 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 Kaya Köklü
Sole Panelist
Date: August 3, 2021
Full & Egal Universal Law Academy