Guess-ph.com + 7 more domains

The timeline behind guess-ph.com

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

How each disputed name was decided in this proceeding.

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

DECISION Guess? IP Holder L.P. and Guess?, Inc. v. Client Care / Web Commerce Communications Limited / Tom BECKER / Matthias BAECKER Claim Number: FA2306002051655 PARTIES Complainant is Guess? IP Holder L.P. and Guess?, Inc. (“Complainant”), represented by Gary J. Nelson of Lewis Roca Rothgerber Christie LLP, California, USA. Respondent is Client Care / Web Commerce Communications Limited / Tom BECKER / Matthias BAECKER (“Respondent”), Malaysia. REGISTRAR AND DISPUTED DOMAIN NAMES The domain names at issue are <guess-ph.com>, <guesslojas.com>, <guessakcio.com>, <guessenucuz.com>, <guesssalg.com>, <guessonlinemexico.com>, <guessale.com>, and <guessfactorymalaysia.com>, (‘the Domain Names’) registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED; NETIM SARL. 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 Forum electronically on June 30, 2023; Forum received payment on June 30, 2023. On July 3, 2023, ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED; NETIM SARL confirmed by e-mail to Forum that the <guess-ph.com>, <guesslojas.com>, <guessakcio.com>, <guessenucuz.com>, <guesssalg.com>, <guessonlinemexico.com>, <guessale.com>, and <guessfactorymalaysia.com> Domain Names are registered with ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED; NETIM SARL and that Respondent is the current registrant of the names. ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED; NETIM SARL has verified that Respondent is bound by the ALIBABA.COM SINGAPORE E-COMMERCE PRIVATE LIMITED; NETIM SARL 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 July 6, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 26, 2023 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@guess-ph.com, postmaster@guesslojas.com, postmaster@guessakcio.com, postmaster@guessenucuz.com, postmaster@guesssalg.com, postmaster@guessonlinemexico.com, postmaster@guessale.com, postmaster@guessfactorymalaysia.com. Also on July 6, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default. On July 31, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist. Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 Names be transferred from Respondent to Complainant. PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS In the instant proceedings, there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.” Guess? IP Holder LP is indirectly wholly owned by Guess? Inc. and the latter is a licensee. The Panel holds that there is sufficient nexus for both companies to bring this Complaint. PRELIMINARY ISSUE: MULTIPLE RESPONDENTS In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” The Complainant points out that the Domain Names point to the same or very similarly constructed web sites, were all registered within three days of each other in March 2023 and all share the same IP address. The Respondent has not answered this Complaint to refute common ownership. The Panel finds that looking at the evidence, on the balance of probabilities the Domain Names are registered by the same entity operating through aliases in this case and this Complaint can proceed in respect of all Domain Names. PARTIES' CONTENTIONS A. Complainant Complainant owns the world famous GUESS brand which it has used for 30 years since 1981 in relation to apparel and which is registered, inter alia, in the USA for clothing. The Domain Names registered in 2023 are confusingly similar to Complainant’s GUESS mark merely adding the descriptive geographical terms ‘ph’ designating Philippines, ‘Mexico’, ‘Malaysia’, ‘online’, ‘sale’, ‘factory’, ‘lojas’ meaning store in Portuguese, ‘akcio’ meaning special offer in Hungarian, ‘nucuz’ meaning discount or cheap in Turkish or ‘salg’ meaning sales in Danish, and/or a hyphen, none of which distinguishes the Domain Names from the Complainant’s mark. The addition of the gTLD .com is irrelevant to the confusing similarity analysis. Respondent has no right or legitimate interest in the Domain Names. Respondent is not commonly known by any of the Domain Names. The Complainant has not licensed the Respondent to use the Complainant’s mark. The Domain Names registered in 2022 have been pointed to web sites purporting to sell the Complainant’s clothing using the Complainant’s mark in its logo form as a masthead and using images from the Complainant to suggest the sites are official sites of the Complainant. The use is commercial so this cannot be legitimate non commercial or fair use of the Domain Names. The Domain Names have been registered and used in opportunistic bad faith confusing and diverting Internet users for commercial gain and disrupting the Complainant’s business with competing activity. The number of Domain Names registered by the Respondent containing the Complainant’s mark shows a pattern of bad faith activity. B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS Complainant owns the world famous GUESS brand which it has used for 30 years since 1981 in relation to apparel and which is registered, inter alia, in the USA for clothing. The Domain Names registered in 2023 have been pointed to web sites purporting to sell the Complainant’s clothing using the Complainant’s mark in its logo form as a masthead and using images from the Complainant to suggest the sites are official sites of the Complainant. 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”). Identical and/or Confusingly Similar The Domain Names in this Complaint combine the Complainant’s GUESS mark (registered in the USA for clothing with first use recorded as 1981), and the descriptive geographical terms ‘ph’ designating Philippines, ‘Mexico’, ‘Malaysia’, ‘online’, ‘sale’, ‘factory’, ‘lojas’ meaning store in Portuguese, ‘akcio’ meaning special offer in Hungarian, ‘nucuz’ meaning discount in Turkish or ‘salg’ meaning sales in Danish, and/or a hyphen, and the gTLD .com. Punctuation marks such as hyphens and the addition of a generic term do not serve to distinguish any of the Domain Names from the Complainant’s GUESS mark which is still identifiable within the Domain Names. See Microsoft Corporation v Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top level domain and the differences between the domain name and the mark it contains are insufficient to differentiate one from the other for the purposes of the Policy). See also Health Devices Corp. v Aspen STC, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4 (a)(i).”). The gTLD .com does not serve to distinguish any of the the Domain Names from the Complainant’s GUESS mark. See Trip Network Inc. v Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the addition of a gTLD to a domain name is irrelevant to a Policy Paragraph 4(a)(i) analysis). Accordingly, the Panel finds that each of the the Domain Names is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy. Rights or Legitimate Interests The Respondent does not appear to be commonly known by the Domain Names. The Complainant has not authorised the Respondent to use the Complainant’s GUESS mark. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 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 Names is commercial and so cannot be legitimate non commercial use. The web sites attached to the Domain Names have been using the Complainant's mark and its logo as a masthead and images taken from the Complainant to offer goods purporting to be those of the Complainant. They did not make it clear that there is no commercial connection between the sites and the Complainant and the web sites appear official. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services). The Respondent has not answered this Complaint and has not rebutted the prima facie case evidenced by the Complainant as set out herein. As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy. Registration and Use in Bad Faith In the opinion of the Panel the use made of the Domain Names in relation to the Respondent’s sites is confusing and disruptive in that visitors to the sites might reasonably believe they are connected to or approved by the Complainant as they have been offering products under the Complainant’s mark in its logo form as a masthead and using images taken from the Complainant giving the impression that the sites attached to the Domain Names are official. The use of the Complainant’s logo and the use of the Complainant’s images on the sites attached to the Domain Names proves that the Respondent is aware of the Complainant and the Complainant’s rights, business and products. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its websites by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web sites likely to disrupt the business of the Complainant. See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use). The Respondent is also engaging in a pattern of activity against a competitor. See NIKE, Inc., and Nike Innovate, C.V. v. Emile Boulanger, FA 1732458 (Forum July 3, 2017) (finding that registration of several infringing domain names in a case satisfies the burden imposed by the Policy ¶ 4(b)(ii)). As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(ii), (iii) and (iv). 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 <guess-ph.com>, <guesslojas.com>, <guessakcio.com>, <guessenucuz.com>, <guesssalg.com>, <guessonlinemexico.com>, <guessale.com>, and <guessfactorymalaysia.com> Domain Names be TRANSFERRED from Respondent to Complainant. Dawn Osborne, Panelist Dated: July 31, 2023 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.