Handcockfabrics.com

The timeline behind handcockfabrics.com

Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.

Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.

NATIONAL ARBITRATION FORUM DECISION Hancock Fabrics, Inc. v. Forum LLC Claim Number: FA0503000447259 PARTIES Complainant is Hancock Fabrics, Inc. (“Complainant”), represented by Bruce Smith, One Fashion Way, Baldwyn, MS 38824. Respondent is Forum LLC (“Respondent”), Cpothall, PO Box 2331, Roseau, Roseau 00152 DM. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <handcockfabrics.com>, registered with Fabulous.com Pty Ltd. PANEL The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding. Hon. Ralph Yachnin as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the National Arbitration Forum electronically on March 28, 2005; the National Arbitration Forum received a hard copy of the Complaint on March 29, 2005. On March 28, 2005, Fabulous.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the domain name <handcockfabrics.com> is registered with Fabulous.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd. has verified that Respondent is bound by the Fabulous.com Pty Ltd. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy"). On March 30, 2005, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 19, 2005 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@handcockfabrics.com by e-mail. Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. On April 22, 2005, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Ralph Yachnin as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent. RELIEF SOUGHT Complainant requests that the domain name be transferred from Respondent to Complainant. PARTIES' CONTENTIONS A. Complainant makes the following assertions: 1. Respondent’s <handcockfabrics.com> domain name is confusingly similar to Complainant’s HANCOCK FABRICS mark. 1. Respondent does not have any rights or legitimate interests in the <handcockfabrics.com> domain name. 2. Respondent registered and used the <handcockfabrics.com> domain name in bad faith. B. Respondent failed to submit a Response in this proceeding. FINDINGS Complainant has used the HANCOCK FABRICS mark since 1961. The mark has been used in connection with a variety of retail fabric store services. On June 2, 1998, Complainant registered the mark with the U.S. Patent and Trademark Office (Reg. No. 2,161,840). The mark was registered in connection with: RETAIL FABRIC STORE SERVICES FEATURING FABRICS, HOME SEWING ACCESSORIES, NOTIONS, PATTERNS, TRIMMINGS, CRAFTS, AND THE LIKE; WHOLESALE SERVICES FEATURING FABRICS, HOME SEWING ACCESSORIES, NOTIONS, PATTERNS, TRIMMINGS, CRAFTS, AND THE LIKE; AND FOR CONSULTING SERVICES RELATED TO THE ESTABLISHMENT AND OPERATION OF RETAIL FABRIC STORES. Respondent registered the <handcockfabrics.com> on June 9, 2002. The domain name resolves to a website that links Internet users to a variety of different websites. Various hyperlinks are posted at the resolved website including “fabrics” and “curtains.” When Internet users click on these hyperlinks they are directed to other commercial websites related to these categories. DISCUSSION Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable." In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred: (1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (1) Respondent has no rights or legitimate interests in respect of the domain name; and (2) the domain name has been registered and is being used in bad faith. Identical and/or Confusingly Similar The registration of a mark with a legitimate governmental authority establishes a presumption of valid rights in the mark pursuant to Policy ¶ 4(a)(i). Complainant has registered the HANCOCK FABRICS mark with the U.S. Patent and Trademark Office. Therefore, Complainant has established a presumption of valid rights in the HANCOCK FABRICS mark pursuant to Policy ¶ 4(a)(i). See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (finding that the registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this assumption); see also Am. Online, Inc. v. Thomas P. Culver Enters., D2001-0564 (WIPO June 18, 2001) (finding that successful trademark registration with the United States Patent and Trademark Office creates a presumption of rights in a mark). Panels have found that a domain name is confusingly similar to a complainant’s mark where the domain name incorporates a complainant’s mark in its entirety and simply adds a single letter to the mark. In the instant case, the <handcockfabrics.com> domain name incorporates Complainant’s HANCOCK FABRICS mark in its entirety and has simply added the letter “d” to the mark. Consistent with prior decisions under the Policy, and in light of Respondent’s failure to respond, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark. See Am.Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding that Respondent’s domain name, <americanonline.com>, is confusingly similar to Complainant’s famous AMERICA ONLINE mark); see also Am. Airlines, Inc. v. Data Art Corp., FA 94908 (Nat. Arb. Forum July 11, 2000) (finding <americanairline.com> "effectively identical and certainly confusingly similar" to Complainant's AMERICAN AIRLINES registered marks). Complainant has established Policy ¶ 4(a)(i). Rights or Legitimate Interests Respondent’s failure to respond is construed as an implicit admission that it lacks rights and legitimate interests in the disputed domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also Honeywell Int’l Inc. v. Domain Deluxe, FA 269166 (Nat. Arb. Forum June 29, 2004) (“The failure of Respondent to respond to the Complaint functions both as an implicit admission that Respondent lacks rights to and legitimate interests in the domain names, as well as a presumption that Complainant’s reasonable allegations are true.”). Additionally, in the absence of a response, the Panel may accept all reasonable allegations in the Complaint, unless clearly contradicted by the evidence. See Am. Online, Inc. v. Clowers, FA 199821 (Nat. Arb. Forum Nov. 14, 2003) (finding that the failure to challenge a complainant’s allegations allows a panel to accept all of the complainant’s reasonable allegations and inferences as true); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant's allegations are true unless clearly contradicted by the evidence). Domain names that are identical or confusingly similar to a complainant’s mark, which are used to market goods or services that compete with those offered under the complainant’s mark, are not being used in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i). In the instant case, the <handcock.com> domain name resolves to a website that contains links to third-party websites that market products relating to “fabrics” and “curtains.” Complainant’s HANCOCK FABRICS mark is used in connection with retail fabric store services. See USPTO Reg. No. 2,161,840. Since Respondent’s domain name is used to market fabrics, which Complainant’s mark is used in connection with, the disputed domain name is not being used for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (holding that Respondent’s appropriation of Complainant’s mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that respondent was not using domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because Respondent used the names to divert Internet users to a website that offered competing services with those offered by the complainant under its marks). There is no evidence in the record that indicates Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"). Respondent is using the disputed domain name in a commercial manner. Therefore, Policy ¶ 4(c)(iii) does not apply. See Schering Corp. v. NGS Enters., LTD, FA 198013 (Nat. Arb. Forum Nov. 7, 2003) (“[T]he Panel concludes that Respondent's use…is plainly commercial in nature, such that Policy ¶ 4(c)(iii) is in fact inapplicable to this dispute.”); see also Avery Dennison Corp. v. Steele, FA 133626 (Nat. Arb. Forum Jan. 10, 2003) (“Evidence indicates that Respondent is profiting from the use of Complainant's mark, therefore Policy ¶ 4(c)(iii)’s 'noncommercial or fair use' criteria are inapplicable.”). Complainant has established Policy ¶ 4(a)(ii). Registration and Use in Bad Faith If a respondent uses a domain name, and has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site, bad faith registration and use may be established pursuant to Policy ¶ 4(b)(iv). In the instant case, Respondent registered a domain name that is confusingly similar to Complainant’s mark. Respondent then used that confusingly similar domain name to resolve to a website that marketed products that compete with Complainant’s services offered under its HANCOCK FABRICS mark, presumably for commercial gain. Respondent has also failed to rebut Complainant’s assertion that Respondent, in fact, registered and used the disputed domain name in bad faith. In these circumstances, and consistent with prior decisions under the Policy, the Panel finds that Respondent is in violation of Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that Respondent intentionally attempted to attract Internet users to his website for commercial gain by creating a likelihood of confusion with Complainant’s mark and offering the same services as Complainant via his website); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that Respondent’s use of the <saflock.com> domain name to offer goods competing with Complainant’s illustrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv)). Complainant has established Policy ¶ 4(a)(iii). DECISION Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED. Accordingly, it is Ordered that the <handcockfabrics.com> domain name be TRANSFERRED from Respondent to Complainant. Hon. Ralph Yachnin, Panelist Justice, Supreme Court, NY (Ret.) Dated: May 3, 2005 NATIONAL ARBITRATION FORUM

Source of record: FORUM . Reproduced for research; FORUM is the authoritative source.