FTP, LLC v media guide

WIPO Case No. D2024-0052

ARBITRATION
AND
MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

FTP, LLC v. media guide

Case No. D2024-0052

1. The Parties

The Complainant is FTP, LLC, United States of America (“US”), represented by Adelman Matz P.C., US.

The Respondent is media guide, Pakistan.

2. The Domain Name and Registrar

The disputed domain name <ftpclothing.co> (the “Disputed Domain Name”) is registered with NameCheap,

Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 8, 2024.
On January 8, 2024, the Center transmitted by email to the Registrar a request for registrar verification in
connection with the Disputed Domain Name. On January 8, 2024, the Registrar transmitted by email to the
Center its verification disclosing the registrant and contact information for the Disputed Domain Name which
differed from the named Respondent (Redacted for Privacy) and contact information in the Complaint. The
Center sent an email communication to the Complainant on January 17, 2024, providing the registrant and
contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the

Complaint. The Complainant filed an amended Complaint on January 23, 2024.

The Center verified that the Complaint together with the amended Complaint satisfied the formal
requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for
Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for

Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the
Complaint, and the proceedings commenced on January 29, 2024. In accordance with the Rules, paragraph
5, the due date for Response was February 18, 2024. The Respondent did not submit any response.
Accordingly, the Center notified the Respondent’s default on February 20, 2024.

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The Center appointed Nick J. Gardner as the sole panelist in this matter on February 23, 2024. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

The Complainant is a US Corporation. It describes its business as follows:

“Complainant is a well-known streetwear clothing brand based in Los Angeles founded by Los Angeles’
native designer Zachary Clark that strives to make quality streetwear products represent his unique style and
‘against the grain’ ethos. Complainant owns and operates the Complainant’s Website
…. showcasing the use of the FTP Marks in use on clothing and other
merchandise (‘FTP Merchandise’). Complainant adopts a unique business strategy to ensure the brand’s
exclusivity - Complainant does periodic drops of FTP Merchandise, where a limited amount of the FTP
Merchandise is put up for sale and is not available after it is sold out”.

The Complainant has been the registrant of the domain name <fuckthepopulation.com> since 2014 which links to its principal website (the “Complainant’s Website”) through which it sells its products.

The Complainant owns a number of registered trademarks for FTP – see for example US Registration No. 5,955,477 registered on January 7, 2020. These trademarks are referred to as the FTP Trademark in this decision.

The Disputed Domain Name was registered on September 27, 2023. Although it does not currently resolve to an active website, the filed evidence shows it has been linked to a website (the “Respondent’s Website”) which is in substance a copy of the Complainant’s website, and which allegedly offers for sale what appears to be the Complainant’s products.

5. Parties’ Contentions

A. Complainant

The Complainant’s contentions can be summarized as follows.

The Disputed Domain Name is similar to the FTP Trademark.

The Respondent has no rights or legitimate interests in the term “FTP”.

In consequence, the Complainant alleges that the Disputed Domain Name was registered and is being used in bad faith. The Complainant says the deceptive nature of the Respondent’s Website is clear evidence of bad faith. It says “Here, Respondent is using its Domain Name to intentionally attract consumers to its Website where it is selling counterfeit merchandise using Complainant’s FTP Marks without any authorization.” It says that by using the Disputed Domain Name, the Respondent intentionally attempted to attract for commercial gain, Internet users to the Respondent’s Website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's Website or of a product or service on the Respondent’s Website.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

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6. Discussion and Findings

Preliminary Matters

The Panel notes that no communication has been received from the Respondent. However, given the
Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar, then the Panel
considers that this satisfies the requirement in paragraph 2(a) of the UDRP Rules to “employ reasonably
available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed
to determine this Complaint and to draw inferences from the Respondent’s failure to file any Response.
While the Respondent’s failure to file a Response does not automatically result in a decision in favour of the
Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see, e.g., Verner

Panton Design v. Fontana di Luce Corp, WIPO Case No. D2012-1909).

Substantive Matters

To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that:

(i) the Disputed Domain Name is identical with or confusingly similar to a trademark or service mark in which

the Complainant has rights;

(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name;

(iii) the Disputed Domain Name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Complainant has rights in the FTP trademark. The Panel finds the Disputed Domain Name is
confusingly similar to this trademark. Previous UDRP panels have consistently held that domain names are
identical or confusingly similar to a trademark for purposes of the Policy “where a domain name incorporates
the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the
domain name”. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition
(“WIPO Overview 3.0”), section 1.7.

It is also established that the addition of a term (such as here “clothing”) to a domain name does not prevent a finding of confusing similarity. WIPO Overview 3.0, section 1.8.

It is also well established that the generic Top-Level Domain (“gTLD”), in this case “.com”, does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.

Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:

(i) before any notice to the respondent of the dispute, use of, or demonstrable preparations to use, the
domain name or a name corresponding to the domain name in connection with a bona fide offering of goods

or services; or

(ii) the respondent has been commonly known by the domain name, even if the respondent has acquired no
trademark or service mark rights; or

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(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for

commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

None of these apply in the present circumstances. The Complainant has not authorised, licensed, or
permitted the Respondent to register or use the Disputed Domain Name or to use FTP trademark. The
Complainant has prior rights in the FTP trademark which precede the Respondent’s acquisition of the
Disputed Domain Name. The Complainant has therefore established a prima facie case that the
Respondent does not have any rights or legitimate interests in the Disputed Domain Name and thereby the
burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate
interests in respect of the Disputed Domain Name (see, for example, Do The Hustle, LLC v. Tropic Web,
WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No.

D2003-0455).

The Panel finds that the Respondent has failed to produce any evidence to establish its rights or legitimate legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled.

interests in the Disputed Domain Name. The Disputed Domain Name has been used to resolve to a website
featuring the Complainant’s FTP trademark in an alleged offering of the Complainant’s branded-goods, which
clearly does not constitute a bona fide offering given that the website fails to disclose it lack of relationship to
the Complainant. WIPO Overview 3.0, section 2.8. While the Complainant alleges that the goods allegedly
offered are counterfeit, due to the discounted nature of their prices, the Panel need not come to a
determination on their genuine nature given that the Disputed Domain Name clearly seeks to impersonate
the Complainant. Such illicit use can never confer rights or legitimate interests upon a response.
C. Registered and Used in Bad Faith

In the present circumstances, the fact that the Disputed Domain Name was linked to the Respondent’s registration and use of the Disputed Domain Name were in bad faith.

The Panel concludes that the Respondent chose to register a name comprising the Complainant’s trademark combined with the descriptive word “clothing” in order to facilitate a scheme where the Respondent’s website impersonated that of the Complainant and allegedly offered for sale products which purported to be those of the Complainant. In the absence of any explanation from the Respondent, the Panel accepts the

Complainant’s case that these products were not genuine.

Under paragraph 4(b) of the Policy a non-exhaustive list of factors evidencing registration and use in bad faith comprises:

(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from
reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such

conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a
competitor; or

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(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet
users to your 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 your web site or location or of a product or
service on your web site or location.

In the present circumstances the Panel agrees with the Complainant that factor (iv) applies as the Respondent was seeking to achieve commercial gain by impersonating the Complainant. Factor (iii) also applies given Respondent’s Website directly impersonates the Complainant’s own website. The Panel also notes that the Respondent has not filed a Response and hence has not availed himself of the opportunity to present any case of good faith that he might have. The Panel infers that none exists.

Accordingly, the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith and the third condition of paragraph 4(a) of the Policy has been fulfilled.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name <ftpclothing.co> be transferred to the Complainant.

/Nick J. Gardner/
Nick J. Gardner
Sole Panelist
Date: March 8, 2024