ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Pipes & Shaw, LLC v. Ling Wang Case No. D2023-0508 1. The Parties The Complainant is Pipes & Shaw, LLC, United States of America, represented by Fixer Advisory Group, United States of America. The Respondent is Ling Wang, China. 2. The Domain Name and Registrar The disputed domain name is registered with Name.com, Inc. (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 2, 2023. On February 3, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 6, 2023, 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 and contact information in the Complaint. 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 February 14, 2023. In accordance with the Rules, paragraph 5, the due date for Response was March 6, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 10, 2023. The Center appointed Pablo A. Palazzi as the sole panelist in this matter on March 21, 2023. 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. page 2 4. Factual Background The Complainant is a New York corporation producer of clothing designs. The Complainant sells a wide range of women's clothing, shoes, and accessories both from its website and from a number of stores in the United States and in London, United Kingdom. The Complainant is the owner of a number of registered trademarks for VERONICA BEARD, including the United States trademark number 4083720 registered on January 10, 2012, and European Union trademark number 10691038 registered on August 31, 2012. The Complainant operates a website located at "www.veronicabeard.com". The domain name was registered on August 20, 2022. It resolves to a website whose home page is titled VERONICA BEARD in a font that is identical to the font used by the Complainant on its website. The Respondent mimicked the same exact products, such as dickey jackets which the Complainant is known for, and also copied font usage, product descriptions, styling images, color scheme and overall presentation. 5. Parties' Contentions A. Complainant The Complainant requests that the disputed domain name be transferred to the Complainant. According to the Complainant, each of the three elements specified in paragraph 4(a) of the Policy are satisfied in the present case. First, the Complainant submits that the disputed domain name is identical or confusingly similar to the VERONICA BEARD mark registrations of the Complainant. Second, the Complainant argues that the Respondent has neither rights nor legitimate interests in the disputed domain name. Third, the Complainant submits that the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings For this Complaint to succeed in relation to the disputed domain name the Complainant must prove that: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. page 3 A. Identical or Confusingly Similar It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant's trademark and the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, ("WIPO Overview 3.0"), section 1.7. Based on the available record, the Panel finds the Complainant has shown rights in respect of a trademark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1 The disputed domain name contains the two words "VERONICA" and "BEARD" forming the mark of the Complainant with the addition of the letter "s" at the end. The Panel finds the entirety of the mark is recognizable within the disputed domain name. Accordingly, the disputed domain name is identical or confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. Based on the available record, the Panel finds the first element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name. While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. Having reviewed the record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not rebutted Complainant's prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain name. Panels have held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent. WIPO Overview 3.0, section 2.13.1. Based on the available record, the Panel finds the second element of the Policy has been established. C. Registered and Used in Bad Faith The Panel notes that for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular but without limitation, that if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The Panel considers that the record of this case reflects that: - the Respondent has used the disputed domain name for a website claiming to be that of VERONICA BEARD and selling what purports to be the Complainant's goods without the Complainant's authorization. - The disputed domain name was registered several years after the Complainant marks were in use. page 4 - The disputed domain name is identical to the mark of the Complainant with the addition of a letter "s" at the end of the mark. - The Respondent is in default. In light of this evidence, the Panel concludes that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or location or of a product or service on the Respondent's website or location. Paragraph 4(b)(iv) of the Policy, and WIPO Overview 3.0, section 3.1.4. Accordingly, the Panel finds that the disputed domain name has been 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. /Pablo A. Palazzi/ Pablo A. Palazzi Sole Panelist Date: March 29, 2023
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