Coldwatercreek-online.com

The timeline behind coldwatercreek-online.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 CW BRANDS LLC v. lmfaqovlkro bwwssxnydkcof Claim Number: FA2409002118372 PARTIES Complainant is CW BRANDS LLC ("Complainant"), represented by Mark S. Kaufman of KAUFMAN & KAHN, LLP, New York, USA. Respondent is lmfaqovlkro bwwssxnydkcof ("Respondent"), Germany. REGISTRAR AND DISPUTED DOMAIN NAME The domain name at issue is <coldwatercreek-online.com>, registered with Chengdu West Dimension Digital Technology Co., 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. The Honorable Neil Anthony Brown KC as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to Forum electronically on September 30, 2024; Forum received payment on September 30, 2024. On October 7, 2024, Chengdu West Dimension Digital Technology Co., Ltd. confirmed by e-mail to Forum that the <coldwatercreek-online.com> domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. and that Respondent is the current registrant of the name. Chengdu West Dimension Digital Technology Co., Ltd. has verified that Respondent is bound by the Chengdu West Dimension Digital 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 October 9, 2024, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of October 29, 2024 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@coldwatercreek-online.com. Also on October 9, 2024, the Chinese and English 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 in Chinese and English. On October 30, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC 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 name be transferred from Respondent to Complainant. PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING Complainant has submitted that the administrative proceeding be conducted in the English language pursuant to UDRP Rule 11(a). That Rule provides that the language of the proceeding is to be the language of the registration agreement relating to the domain name at issue, unless the Panel determines that it should be a different language having regard to the circumstances of the proceeding. Complainant makes this request in light of the Chinese language Registration Agreement. It is also the established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Among the factors which previous panels have found to support a finding that a different language is more appropriate than the language of the registration agreement has been evidence that the Respondent has familiarity with the English language. See The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language). Further, the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, "It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case."). The Complainant submits and has established that the Respondent has the ability to understand and transact business in English, such that conducting the proceeding in English will not prejudice it. The Complainant relies on the circumstances that the words "coldwatercreek-online" in the domain name created by the Respondent are themselves English words. The Panel adds that the Respondent seems to have had no difficulty in describing the products offered on its website in colloquial English, such as "Men's gorgeous ruffled shirt $5.13 Save $52.87." The Complainant also submits that it conducts its business in English, and that it would be put to unnecessary expense to have all the papers translated into Chinese. The Panel finds that the Respondent has sufficient familiarity with the English language to enable it to conduct the proceeding in English, that this has been established by the evidence and that that the proceeding should therefore be conducted in English. Accordingly, and pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to show that the Respondent is conversant and proficient in the English language. After considering all of the circumstances of the proceeding, the Panel therefore decides that the proceeding should be conducted in the English language. PARTIES' CONTENTIONS A. Complainant Complainant made the following contentions. 1. The Complainant is a United States company engaged in the provision of clothing and a broad range of related goods and services under the COLDWATER CREEK trademark. 2. The Complainant owns the COLDWATER CREEK trademark, registered with the United States Patent and Trademark Office ("USPTO"), Registered Number 2,555,721 registered on April 2, 2002 together with other trademarks for COLDWATER CREEK registered both nationally and internationally (collectively "the COLDWATER CREEK trademark"). 3. The Complainant has continuously used the aforesaid trademark since its registration to designate its goods and services provided under the trademark. 4. The COLDWATER CREEK trademark has attracted substantial goodwill and is uniquely associated with the Complainant goods and services. 5. The Respondent registered the <coldwatercreek-online.com> domain name on September 5, 2024 ("the disputed domain name"). 6. The disputed domain name embodies, without the consent of the Complainant, the COLDWATER CREEK trademark, and the Respondent in registering the domain name has deleted the space in the trademark and added a hyphen, the word "online" and the generic Top Level Domain ".com". 7. The disputed domain name is confusingly similar to the COLDWATER CREEK trademark. 8. The Respondent has caused the disputed domain name to resolve to a website that purports to be the Complainant's website, copies from that website and offers products that give the false impression that they are genuine products of the Complainant which they are not. 9. The Respondent has no rights or legitimate interests in the disputed domain name. That is so because: (a) the Respondent has not used the disputed domain name for a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i); (b) the Respondent has masked its identity with a meaningless user name; (c) the Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶4(c)(ii); (d) the Respondent has not used the disputed domain name for a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii); (e) the Respondent has intentionally attempted to attract, for commercial gain, internet users by creating a likelihood of confusion with the COLDWATER CREEK trademark, within the meaning of Policy ¶ 4(b)(iv); and (f) the evidence will show that there is no other ground on which it could be conceivably shown that the Respondent has a right or legitimate interest in the disputed domain name. 10. The Respondent has registered and used the disputed domain name in bad faith. That is so because: (a) the Respondent has registered and used the disputed domain name for the purpose of selling, renting or otherwise transferring the domain name to the Complainant or a competitor within the meaning of Policy ¶ 4(b)(i); (b) the Respondent has intentionally attempted to attract, for commercial gain, internet users by creating a likelihood of confusion with the COLDWATER CREEK trademark, within the meaning of Policy ¶ 4(b)(iv); and (c) all of the relevant acts, facts, matters and circumstances revealed by the evidence will show that the Respondent has registered and used the disputed domain name in bad faith. B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS 1. The Complainant is a United States company engaged in the provision of clothing and a broad range of related goods and services. 2. The Complainant owns the COLDWATER CREEK trademark, registered with the United States Patent and Trademark Office ("USPTO"), Registered Number 2,555,721 registered on April 2, 2002 together with other trademarks for COLDWATER CREEK registered both nationally and internationally, (collectively "the COLDWATER CREEK trademark"). 3. The Respondent registered the <coldwatercreek-online.com> domain name on September 5, 2024 ("the disputed domain name"). 4. The Respondent has caused the disputed domain name to resolve to a website that purports to be the Complainant's website, copies from that website and offers products that give the false impression that they are genuine products of the Complainant which they are not. 5. The evidence establishes that the disputed domain name is confusingly similar to the COLDWATER CREEK trademark, that the Respondent has no rights or legitimate interests in the domain name and that it has registered and used the domain name in bad faith. 6. Accordingly, the disputed domain name should be transferred to 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 and 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 first question that arises is whether the Complainant has rights in a trademark or service mark on which it may rely. The evidence has established that the Complainant has provided its goods and services under the COLDWATER CREEK trademark. In particular the evidence has shown that the Complainant owns the COLDWATER CREEK trademark, registered with the United States Patent and Trademark Office ("USPTO"), Registered Number 2,555,721 registered on April 2, 2002 together with other trademarks for COLDWATER CREEK registered both nationally and internationally, (collectively "the COLDWATER CREEK trademark"). The Complainant has established those registrations by documentary evidence that the Panel has examined and finds to be in order. The Complainant has thus established its trademark rights and hence its standing to bring this proceeding. The next question that arises is whether the disputed domain name is identical or confusingly similar to the COLDWATER CREEK trademark. The Panel finds that the domain name is confusingly similar to the COLDWATER CREEK trademark for the following reasons. The disputed domain name embodies, without the consent of the Complainant, the COLDWATER CREEK trademark and the Respondent in registering the domain name has deleted the space in the trademark and added a hyphen, the word "online" and the generic Top Level Domain ".com". It is clear and well established that if a domain name includes a trademark, as in the present case, it is more likely than not that the domain name is both similar to the trademark and confusingly so. That is so in the present case. The removal of the space in the trademark and the addition of a hyphen are too minor to have any effect. Moreover, the addition of the word "online", which is a generic word, merely gives to the domain name the meaning that it is invoking the trademark and the provision of the Complainant's goods and services under the COLDWATER CREEK trademark online. The addition of the generic Top Level Domain ".com" or other TLDs has long been held to have no effect, as all domain names must have such an extension. The Panel therefore finds that the domain name is similar to the trademark and confusingly so, the confusion being that it raises a question mark whether the domain name is a genuine domain name of the Complainant or not. The Complainant has thus made out the first of the three elements that it must establish. Rights or Legitimate Interests It is now well established that the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) and that, if the prima facie case is made out, the burden then shifts to the Respondent to show that it does have such rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)). The Panel finds on the evidence that the Complainant has made out the requisite prima facie case that arises from the following considerations that are the basis of the Complainant's submissions: (a) the evidence has established that the Respondent has not used the disputed domain name for a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i); it is not bona fide to take another party's trademark without permission, use it to create a confusingly similar domain name and then use the domain name to resolve to a website that is the same as or similar to the Complainant's own official website and which purports to be selling clothing and other goods and services that are the same as those of the Complainant, which the Respondent has done; this is shown by the Complainant's Annex 4 which the Panel has examined and finds to be offering clothing and other accoutrements at vastly reduced prices which, when comparing the Complainant's prices of $89-$99 with the Respondent's prices of $3-$5, is somewhat suspicious; the obvious inference is that the Respondent is using the Complainant's trademark to imply falsely that the Respondent's offerings are COLDWATER CREEK offerings; that cannot be bona fide and because of the deception involved is more akin to mala fide than bona fide; (b) the evidence shows that in registering the domain name the Respondent has masked its identity with a meaningless username which may be seen above to be "lmfaqovlkro bwwssxnydkcof"; that itself shows dishonesty in the registration of the domain name which must negate any suggestion that the Respondent has a right or legitimate interest in the domain name so created; (c) likewise, the evidence shows that the Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii); there is no evidence to show that the Respondent is commonly known by the domain name and it is impossible to conceive that it is so known; (d) the Respondent has not used the disputed domain name for a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii); there is nothing legitimate in what the Respondent has done; it has also been done to make money which is itself commercial; and it is not fair, either to the Complainant or to internet users whom the Respondent is trying to deceive; (e) the evidence shows that the Respondent has intentionally attempted to attract, for commercial gain, internet users by creating a likelihood of confusion with the COLDWATER CREEK trademark, within the meaning of Policy ¶ 4(b)(iv); that, likewise, must show that the Respondent has no right or legitimate interest in the domain name; and (f) nothing has emerged from the evidence to show that there is any other ground on which it could be conceivably shown that the Respondent has a right or legitimate interest in the disputed domain name. The Complainant has therefore convincingly made out all of the grounds it relies on to show a prima facie case that the Respondent does not have a right or legitimate interest in the disputed domain name. The Respondent has not filed a Response or attempted by any other means to rebut the Complainant's contentions. That being so, the Panel finds on the evidence that there is a prima facie case that the Respondent does not have a right or legitimate interest in the domain name and that the prima facie case has not been rebutted. The Complainant has thus made out the second of the three elements that it must establish. Registration and Use in Bad Faith It is clear that to establish bad faith for the purposes of the Policy, the Complainant must show that the disputed domain name was registered and used in bad faith. It is also clear that the criteria set out in the Policy ¶ 4(b) are not exclusive but that domain name proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression. The Complainant has submitted that the Respondent has registered and used the disputed domain name in bad faith and the Panel finds that it has made out its case on the evidence. In particular, the evidence shows that: (a) the Respondent has registered and used the disputed domain name for the purpose of selling, renting or otherwise transferring the domain name to the Complainant or a competitor within the meaning of Policy ¶ 4(b)(i); it is clear that, probably, one of the intentions of the Respondent was to blackmail the Complainant to try to force it to buy the domain name from the Respondent, a course of action which the Complainant has commendably resisted; (b) the Respondent has intentionally attempted to attract, for commercial gain, internet users by creating a likelihood of confusion with the COLDWATER CREEK trademark, within the meaning of Policy ¶ 4(b)(iv); the Respondent clearly wanted to generate confusion so that intent users would think that its heavily discounted products were genuine COLDWATER CREEK products offered under the COLDWATER CREEK trademark and to do so for commercial gain; and (c) all of the relevant acts, facts, matters and circumstances revealed by the evidence have shown that the Respondent has registered and used the disputed domain name in bad faith. Finally, in addition to the specific provisions of the Policy and having regard to the totality of the evidence, the Panel finds that, in view of the Respondent's registration of the disputed domain name using the Complainant's trademark and in view of the conduct of the Respondent in using it, as shown by all of the available evidence, the Respondent registered and used the domain name in bad faith within the generally accepted meaning of that expression. The Complainant has thus made out the third of the three elements that it must establish. The Complainant has therefore established all of the elements that it must show under the Policy and it is entitled to the relief it seeks. 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 <coldwatercreek-online.com> domain name be TRANSFERRED from Respondent to Complainant. The Honorable Neil Anthony Brown KC, Panelist Dated: October 31, 2024 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.