Brooksle.com

The timeline behind brooksle.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.

DECISION Brooks Sports, Inc. v. chen jia jin Claim Number: FA1908001858864 PARTIES Complainant is Brooks Sports, Inc. (“Complainant”), represented by Mayura I. Noordyke of Cozen O’Connor, Washington, USA. Respondent is chen jia jin (“Respondent”), China. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <brooksle.com> (‘the Domain Name’), registered with Xiamen 35.Com Technology Co., Ltd.. PANEL The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding. Dawn Osborne as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to the Forum electronically on August 23, 2019; the Forum received payment on August 23, 2019. On August 26, 2019, Xiamen 35.Com Technology Co., Ltd. confirmed by e-mail to the Forum that the <brooksle.com> domain name is registered with Xiamen 35.Com Technology Co., Ltd. and that Respondent is the current registrant of the name. Xiamen 35.Com Technology Co., Ltd. has verified that Respondent is bound by the Xiamen 35.Com Technology Co., Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”). On August 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 18, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@brooksle.com. Also on August 29, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts. Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. On September 23, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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 The Complainant’s contentions can be summarized as follows: The Complainant is the owner of several trademarks containing BROOKS registered in the USA for athletic footwear including the word mark BROOKS with first use recorded as 1914 and logo versions of that mark, which have also been registered with use in commerce recorded since 1987. It has owned Brooksrunning.com since 1999. The Domain Name registered in 2019 is confusingly similar to the Complainant’s mark incorporating it in its entirety and adding only the random letters ‘le’ and the gTLD “.com” which do not prevent this confusing similarity. The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorized by the Complainant. The Domain Name has being used to point to a web site that mimicked that of the Complainant using a similar header and the Complainant’s brand and logo and other material from the Complainant’s web site like photos, a copyright notice and the address of the Complainant’s Australian distributor to purport to sell shoes and pass the site off as connected to the Complainant. The site displayed the description ‘official website’ when it was not. The site attached to the Domain Name also appeared to be collecting personal information from customers and is similar to another fraudulent site encountered by the Complainant, which was the subject of a transfer under the UDRP. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Respondent’s conduct is registration and use in bad faith. The Respondent is deliberately confusing and diverting customers looking for the Complainant or its goods to a competing website for suspected fraudulent purposes and commercial gain and saying the site is ‘official’ when it is not. The use of the Complainant’s logo and material from its web site shows the Respondent was and is aware of the Complainant and its rights. The Respondent has registered a domain name including English characters and pointing to an English web site. Accordingly, despite the language of the registration agreement the Proceedings should be conducted in English. B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS The Complainant is the owner of several trademarks containing BROOKS registered in the USA for athletic footwear including the word mark BROOKS with first use recorded as 1914 and logo versions of that mark which have also been registered with use in commerce recorded since 1987. It has owned Brooksrunning.com since 1999. The Domain Name registered in 2019 has been used to purport to offer the Complainant’s goods on a site described as ‘official’ and mimicking the Complainant’s official web site using the Complainant’s name, its official logo, the address of its Australian distributor and other material from the Complainant’s web site when there was and is no actual connection between the site attached to the Domain Name and the Complainant or said distributor. 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." 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 (2) Respondent has no rights or legitimate interests in respect of the domain name; and (3) the domain name has been registered and is being used in bad faith. 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(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”). PRELIMINARY ISSUE: LANGUAGE OF THE REGISTRATION AGREEMENT Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English. Identical or Confusingly Similar The Domain Name consists of the Complainant’s BROOKS mark (registered in the USA for footwear and used since 1914), the letters ‘le’ and the gTLD “.com.” The Panelist agrees with the Complainant that the addition of the letters ‘le’ which does not appear to have a relevant meaning does not distinguish the Domain Name from the Complainant’s trademark which is still identifiable within the Domain Name. A gTLD does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s BROOKS registered mark. As such, the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied. Rights or Legitimate Interests The Complainant has not authorized the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use of the Domain Name is commercial and so cannot be legitimate non-commercial use. The web site attached to the Domain Name used the Complainant's BROOKS mark and its official logo, was described as ‘official’, used material from the Complainant’s web site and falsely used the address of the Complainant’s Australian distributor, thereby strongly suggesting that there was a commercial connection with the Complainant when there was not. The Panel finds this use deceptive and passing off. As such, it cannot amount to the bona fide offering of goods and services or fair use. See iFinex Inc. v. Yuri Heifetz/Genie-Solution, FA 1789385 (Forum July 9, 2018) (holding that the respondent’s mimicking of the complainant’s web site in order to cause existing or potential customers of the complainant’s to believe they are dealing with the complainant is prima facie evidence of the respondent’s lack of rights and legitimate interests in the disputed domain name). As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy. Registration and Use in Bad Faith In the opinion of the Panelist, the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might have reasonably believed it is connected to or approved by the Complainant as the Complainant’s trade mark, its official logo, material from the Complainant’s web site and the Complainant’s Australian distributor’s address were used without permission. The use of the Complainant's logo, material from the Complainant’s site and its distributor’s address on the Respondent's web site shows that the Respondent is aware of the Complainant and its business. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant. See Allianz of AM. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website). As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under ¶¶ 4(b)(iv) and (iii). There is no need to consider further grounds of bad faith. 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 <brooksle.com> domain name be TRANSFERRED from Respondent to Complainant. Dawn Osborne, Panelist Dated: September 23, 2019 Click Here to return to the main Domain Decisions Page. Click Here to return to our Home Page

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