Evenflobabygearhub.shop, Evenflobabygear.shop

The timeline behind evenflobabygearhub.shop

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.

NATIONAL ARBITRATION FORUM DECISION Evenflo Company, Inc. and Evenflo Company Holdings, LLC v. tu hu Claim Number: FA2412002128232 PARTIES Complainant is Evenflo Company, Inc. and Evenflo Company Holdings, LLC ("Complainant"), represented by Robyn S. Lederman of Brooks Kushman P.C., Michigan, USA. Respondent is tu hu ("Respondent"), California, USA. REGISTRAR AND DISPUTED DOMAIN NAMES The domain names at issue are <evenflobabygearhub.shop> and <evenflobabygear.shop> (collectively "Domain Names"), registered with Sav.com, LLC. PANEL The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding. Nicholas J.T. Smith as Panelist. PROCEDURAL HISTORY Complainant submitted a Complaint to Forum electronically on December 6, 2024; Forum received payment on December 6, 2024. On December 6, 2024, Sav.com, LLC confirmed by e-mail to Forum that the <evenflobabygearhub.shop> and <evenflobabygear.shop> domain names are registered with Sav.com, LLC and that Respondent is the current registrant of the names. Sav.com, LLC has verified that Respondent is bound by the Sav.com, LLC 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 December 6, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 26, 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@evenflobabygearhub.shop and postmaster@evenflobabygear.shop. Also on December 6, 2024, 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 December 27, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Nicholas J.T. Smith 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." 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." Previous panels have interpreted Forum's Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int'l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated: It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity. In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark. The Panel has reviewed the Complaint and is satisfied that that Evenflo Company Holdings, LLC is a wholly owned subsidiary of Evenflo Company, Inc. and that both companies share ownership of the EVENFLO mark. This is sufficient to establish a sufficient nexus or link between the Complainants such that they should be treated as a single entity in this proceeding referred to in the singular, as "Complainant". PARTIES' CONTENTIONS A. Complainant Complainant is a manufacturer and retailer of children's products and offers these products under the EVENFLO brand. Complainant asserts rights to the EVENFLO mark based upon registration with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 1,446,278, registered July 7, 1987). The domain names <evenflobabygearhub.shop> and <evenflobabygear.shop> are confusingly similar to the EVENFLO mark because the contain the EVENFLO mark in its entirety, merely adding generic or descriptive terms and a generic top-level domain ("gTLD"). Respondent does not have rights or legitimate interests in <evenflobabygearhub.shop> and <evenflobabygear.shop>. Respondent is not licensed or authorized to use the EVENFLO mark and is not commonly known by the Domain Names. Respondent is not using the Domain Names in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent uses the domain name <evenflobabygearhub.shop> ("Active Domain Name") for a website ("Respondent's Website") that impersonates Complainant for the purpose of offering goods that compete with Complainant's children's products. With respect to the domain name <evenflobabygear.shop> ("Inactive Domain Name"), Respondent has not made any demonstrable preparations to use that domain name at all. Respondent registered and uses <evenflobabygearhub.shop> and <evenflobabygear.shop>in bad faith because Respondent uses the Active Domain Name to pass off as Complainant in an attempt to disrupt Complainant's business for Respondent's own commercial gain by offering children's products in competition with Complainant at the Respondent's Website. With respect to the Inactive Domain Name, Respondent has made no use of this domain name. Respondent acted with actual knowledge of Complainant's rights in the EVENFLOW mark as shown by the Respondent's Website, which offers competing goods and copyrighted images of Complainant's products. B. Respondent Respondent failed to submit a Response in this proceeding. FINDINGS Complainant holds trademark rights for the EVENFLO mark. Each of the Domain Names is confusingly similar to the EVENFLO mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Names and that Respondent registered and has used the Domain Names in bad faith 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 Complainant has rights in the EVENFLO mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (Reg. No. 1,446,278, registered July 7, 1987). Registration of a mark with the USPTO is sufficient to establish rights in that mark. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) ("Complainant's ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i)."). The Panel finds that each of the Domain Names is confusingly similar to the EVENFLO mark as they each incorporate the EVENFLO in its entirety while adding generic terms and the .shop gTLD. The addition of generic or descriptive terms and a gTLD to a mark is insufficient to distinguish a domain name from the mark it incorporates per Policy ¶ 4(a)(i). See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) ("[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i)."); see also MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) ("The disputed domain name is confusingly similar to Complainant's mark as it wholly incorporates the CUB CADET mark before appending the generic terms 'genuine' and 'parts' as well as the '.com' gTLD."); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (finding top-level domains are irrelevant for purposes of Policy ¶ 4(a)(i) analysis). The Panel finds Complainant has satisfied Policy ¶ 4(a)(i). Rights or Legitimate Interests Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Names. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Names under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) ("Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names."). The Panel holds that Complainant has made out a prima facie case. Complainant asserts that Respondent has no rights or legitimate interests in the Domain Names as Respondent is not commonly known by the Domain Names, nor has Complainant authorized Respondent to use the EVENFLO mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA 1621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where "Privacy Service" was listed as the registrant of the disputed domain name). The WHOIS information of record lists "tu hu" as the registrant of record. Coupled with Complainant's unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Names in accordance with Policy ¶ 4(c)(ii). The Active Domain Name (the Inactive Domain Name, absent other evidence, can be presumed to be inactive pending use for a similar purpose) resolves to the Respondent's Website which, through the reproduction of the EVENFLO mark and copyrighted images of Complainant's products, passes itself off as an official website of the Complainant for the purpose of selling unauthorized versions of Complainant's goods, in direct competition with Complainant's merchandise. The use of a confusingly similar domain name to resolve to a webpage that directly offers unauthorized versions of a complainant's goods or goods or services that directly compete with a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use; indeed it provides a false impression that the Respondent is affiliated with or authorized by Complainant. See BALENCIAGA SA v. ling lin, FA 1768542 (Forum Feb. 16, 2018) ("The disputed domain names incorporate Complainant's registered mark, and are being used for websites that prominently display Complainant's mark and logo, along with apparent images of Complainant's products, offering them for sale at discounted prices. The sites do not disclaim any connection with Complainant, and in fact seem to be designed to create an appearance of such a connection. Such use does not give rise to rights or legitimate interests."). See also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) ("use of a domain to sell products and/or services that compete directly with a complainant's business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)."). The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii). Registration and Use in Bad Faith The Panel finds on the balance of probabilities that, at the time of registration of the Domain Names, July 15-17, 2024, Respondent had actual knowledge of the EVENFLO mark since the Respondent's Website passes itself off as an official website of the Complainant including reproducing the EVENFLO mark and copyrighted images of Complainant's products. Furthermore, there is no obvious explanation, nor has one been provided, for an entity to register two domain names that contain the EVENFLO mark and use one of the Domain Names to redirect visitors to the Respondent's Website selling goods in direct competition with the Complainant under the EVENFLO mark other than to take advantage of Complainant's reputation in the EVENFLO mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii). The Panel finds that Respondent registered and uses the Domain Names in bad faith to create confusion with EVENFLO mark for commercial gain by using (or in the case of the Inactive Domain Name passively holding the domain name pending similar use) the confusingly similar Active Domain Name to resolve to a website mimicking Complainant's website and offering unauthorized versions of Complainant's products in direct competition with the Complainant's products. Using a confusingly similar domain name to trade upon the goodwill of a complainant can evince bad faith under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA 1612750 (Forum May 13, 2015) ("The Panel agrees that Respondent's use of the website to display products similar to Complainant's, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv)."). See also See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where "Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant's own website in order to confuse users into believing that Respondent is Complainant or is otherwise affiliated or associated with Complainant."). The Panel finds Complainant has satisfied 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 <evenflobabygearhub.shop> and <evenflobabygear.shop> domain names be TRANSFERRED from Respondent to Complainant. Nicholas J.T. Smith, Panelist Dated: December 29, 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.