WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION G-Star Raw Denim KFT v. xia xinzheng Case No. D2009-0398 1. The Parties
The Complainant is G-Star Raw Denim KFT, Budapest, Hungary, represented by Igor San Juan, Esq., Hungary.
The Respondent is xia xinzheng, Guangzhou, Guangdong, the People's Republic of China. 2. The Domain Name and Registrar
The disputed domain name is registered with B, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 25, 2009. On March 25, 2009, the Center transmitted by email to B, Inc. a request for registrar verification in connection with the disputed domain name. On March 26, 2009, B, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On March 26, 2009, the Center communicated by email to B Inc. concerning the pending expiry of the disputed domain name. On March 27, 2009, B Inc. transmitted by email to the Center its confirmation that the disputed domain name is in lock status until the conclusion of the proceeding.
On March 27, 2009, the Center communicated by email to the parties concerning language of proceeding in both Chinese and English. The language of proceedings document stated that the Complainant could either submit evidence of an agreement between the parties that the language of proceedings should be in English; translate the Complaint into Chinese; or submit a request for English to be the language of proceedings. On March 27, 2009, the Complainant re-asserted its request for English to be the language of proceedings (as it had done so previously in the Complaint.) The Center did not receive any comments from the Respondent by the due date.
The Center verified that the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 6, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was April 26, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 27, 2009.
The Center appointed Dr. Hong Xue as the sole panelist in this matter on May 7, 2009. 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 G-Star Raw Denim KFT uses G-STAR as the trademark for jeans-wear and other products. The trademark G-STAR has been registered since 1994 in many countries or regions for a number of goods and services, such as cosmetics, footwear, clothing, luggage and umbrellas.
The Respondent Xia Xinzheng registered the disputed domain name on March 29, 2008. 5. Parties' Contentions A. Complainant
The Complainant contended that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant had rights. The Complainant stated that G-Star had been registered worldwide for a number of goods and services and extensively used as the trademarks.
The Complainant contended that the disputed domain name misused and infringed the Complainant's trademarks by incorporating without any modification the trademarks G-STAR owned and commercially used by the Complainant for the purpose of business.
The Complainant contended that the Respondent has no rights or legitimate interests in respect of the domain name. The Complainant stated that it did not license or otherwise permit the Respondent to use its trademarks, or a sign confusingly similar to its trademarks, or to apply for any domain name corresponding to its trademarks. The Complainant claimed that there is no other indication that the Respondent has any rights or legitimate interests as mentioned in paragraph 4(c) of the Policy.
The Complainant contended that the disputed domain name was registered and is being used in bad faith. The Complainant claimed that the disputed domain name was primarily registered to disrupt or damage the business of G-STAR and to attract Internet users to the Respondent's web site for commercial gain by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's web site or location or of a product or service on the Respondent's web site or location.
The Complainant requested that the disputed domain name be transferred to it. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Language of the Proceeding
According to the paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
The language of the Registration Agreement for the disputed domain name , as confirmed by the Registrar, is Chinese. The Complainant requested that the language of proceeding be English and presented its reasons. The Respondent did not make any submission.
The Panel believes that, all the circumstances of the proceeding should be taken into account before deciding the language of the proceeding different from the language of the Registration Agreement.
One circumstance that should be taken into account is whether the Party that requests the change of the language of proceeding assumes the burden of proof and provides persuasive reasons and/or evidence to support the request. In the present case, the Complainant requested that the language of the proceeding be English, as different from the language of the Registration Agreement, and presented a number of reasons. The Panel finds that these reasons are acceptable and not contested by the Respondent in any communication.
Another circumstance that should be taken into account is the Parties' genuine ability to take apart in the proceeding conducted in a language different from the language of the Registration Agreement. According to the Rules, paragraph 10 (b), the Panel shall ensure that the Parties are treated with equality and that each Party is given a fair opportunity to present its case. Therefore it is important to objectively assess the Parties' language ability in the proceeding, rather than solely rely on any Party's mere assertion. In the present case, the Panel finds that the Respondent has sufficient capacity to present its case in English. The Panel's conclusion is based in part on the fact that the disputed domain name was used by the Respondent for a web site “www.” that showed the contents solely in English.
In view of the above, it is not foreseeable that the Respondent will be prejudiced, should English be adopted as the language of the proceeding. Having considered all the circumstances of the proceeding, this Panel determines under the Rules, paragraph 11(a) that English shall be the language of the proceeding. B. Identical or Confusingly Similar
Pursuant to the Policy, paragraph 4 (a)(i), a complainant must prove that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. In line with such requirement, a complainant must prove its trademark rights and the similarity between the disputed domain name and its trademark.
The Panel finds that before the registration of the disputed domain name the Complainant has acquired the trademark rights over the mark G-STAR, G-STAR (old) logo and G-STAR Raw (new) through registrations in a number of countries and regions, including China which is the Respondent's country of residence.
The disputed domain name is . Apart from the generic top-level domain suffix “.com”, the disputed domain name consists of “g-starstore”. Compared with the Complainant's mark G-STAR, there is an additional word “store”. It is established by numerous decisions made under the Policy that adding a word to a complainant's mark will usually not preclude a finding of confusing similarity. If the word added relates to the complainant's business, it is even more likely to find confusing similarity between the disputed domain name and the complainant's trademark (see Experian Information Solutions, Inc. v. BPB Prumerica Travel (a/k/a SFXB a/k/a H. Bousquet a/k/a Brian Evans),WIPO Case No. D2002-0367). In the present case, the disputed domain name not only contains the Complainant's registered trademark G-STAR in its entirety but adds to the mark a generic word “store” that implies the sales of the Complainant's of fashion products.
The Panel therefore finds that the disputed domain name is confusingly similar to the mark in which the Complainant has rights. The Panel therefore finds that the Complaint has proven the first element required by paragraph 4(a) of the Policy. C. Rights or Legitimate Interests
The Complainant asserted that the Respondent had no rights or legitimate interests in the disputed domain name and, as stated above, the Respondent did not provide any information to the Panel asserting any right or legitimate interest it had in the disputed domain name.
It is apparent from the Complaint that there was no connection between the Respondent and the Complainant or its business. Paragraph 4(c) of the Policy lists a number of circumstances which can be taken to demonstrate a respondent's rights or legitimate interests in a domain name. However, there is no evidence before the Panel that any of the situations described in paragraph 4(c) of the Policy apply here. To the contrary, the lack of a Response leads the Panel to draw a negative inference.
Therefore, and also in light of the Panel's findings below, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. Accordingly, the Complaint has proven the second element required by paragraph 4(a) of the Policy. D. Registered and Used in Bad Faith
The Complainant contended the Respondent had registered and was using the disputed domain name in bad faith. The Respondent did not respond.
Through examining the evidence submitted, the Panel notes that the disputed domain name is being used for a web site of “Ulstyle”, which is a wholesaler of fashion products. On the web site “www.”, a number of trademarks of fashion products, such as Ralph Lauren, Lacoste and Marc Jacobs, are listed, along with the “Payment Info” and “Shopping guide”. Since the disputed domain name was registered and is fully controlled by the Respondent, the Respondent is responsible for any use of the disputed domain name. The use of the disputed domain name that is confusingly similar to the Complainant's trademark to attract the consumers to a web site that is commercializing the products that are directly competing with the Complainant's is highly likely to cause confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the web site or of the products on the web site.
The Panel finds that it is adequate to conclude that the Respondent has registered and used the disputed domain name in bad faith under the Policy, paragraph 4(b)(iv). Therefore, the Complaint successfully proves the third element required by paragraph 4(a) of the Policy. 7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Dr. Hong Xue
Sole Panelist
Dated: May 21, 2009
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