WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION J. Choo Limited v. Zhang Linrui Case No. D2009-1381 1. The Parties
The Complainant is J. Choo Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by A.A.Thornton & Co, United Kingdom.
The Respondent is Zhang Linrui of Guilin, Guangxi, the People's Republic of China. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 16, 2009. On October 16, 2009, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On October 19, 2009, GoD, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 October 26, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 15, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 16, 2009.
The Center appointed Richard Hill as the sole panelist in this matter on November 20, 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 owns numerous trademarks for the brand JIMMY CHOO, and sells products under that name.
The Respondent does not have any license or other authorization to use the Complainant's mark or to sell its products.
The Respondent is using the disputed domain name to offer for sale the Complainant's branded products. 5. Parties' Contentions A. Complainant
The Complainant alleges that it owns numerous trademarks around the world for the name JIMMY CHOO and that it sells high fashion ladies' footwear (shoes) and related fashion products under that mark.
According to the Complainant, the disputed domain name contains the registered trademark in its entirety. The addition of the element “shop” is entirely descriptive and indicates that the website offers products for sale. Accordingly under the Policy, the disputed domain name is confusingly similar to the Complainant's trademark.
The Complainant states that there is no evidence that the Respondent has been or is commonly known by the disputed domain name or has acquired any trademark rights in it. The Respondent has no relationship with, or permission, from the Complainant regarding use of its trademarks. Nor is the Respondent authorized to sell the Complainant's products.
The website at the disputed domain name offers for sale the Complainant's branded products. Thus the disputed domain name is clearly being used in an attempt to catch Internet users searching for the Complainant's products. Such use is likely to mislead consumers into believing that the Respondent's website is associated with the Complainant. Consumers are likely to believe that they are purchasing authentic products through a website authorized by the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
It is clear that the disputed domain name is confusingly similar (in the sense of the Policy) to the Complainant's mark, because it contains the mark and merely adds the common word “shop” to form the domain name. See PACCAR, Inc. v. Enyart Associates and T, LLC, WIPO Case No. D2000-0289 (May 26, 2000); see also Quixtar Investments Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253 (May 29, 2000).
The Panel holds that the Complainant has satisfied this first element of the Policy. B. Rights or Legitimate Interests
The Respondent does not have any license or other authorization to use the Complainant's mark or to sell its products. The Respondent is using the disputed domain name to offer for sale the Complainant's branded products.
As the Complainant correctly points out, the Respondent is not commonly known by the disputed domain names, and it is difficult to conceive in these circumstances of any use by the Respondent of the disputed domain names that would not be illegitimate.
Indeed, where a party has registered and used a domain name in bad faith (see the discussion below), that party cannot be found to have made a bona fide offering of goods and services, see The PNC Financial Services Group, Inc. and PNC Bank, N.A. v. Azra Khan,WIPO Case No. D2002-0701 (Sept. 6, 2002); see also AltaVista Company v. Saeid Yomtobian,WIPO Case No. D2000-0937 (October 13, 2000). Thus, it cannot be said that the Respondent has rights or legitimate interests in the disputed domain name.
The Panel holds that the Complainant has satisfied its burden of proof under this element of the Policy. C. Registered and Used in Bad Faith
From the present circumstances, it is clear that the Respondent was aware of the Complainant's marks when he registered and started using the disputed domain name, because inter alia the domain name contains the Complainant's mark and the website offers to sell the Complainant's products.
The Respondent (who did not reply) has not presented any plausible explanation for its use of the Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that the Respondent did not have a good faith use in mind when he registered the disputed domain name.
Indeed the Respondent's actual use of the disputed domain name (as noted above) is clearly not bona fida, because the Respondent operates a website that sells the Complainant's products. This indicates that the Respondent has registered and is using the disputed domain name to take advantage of the confusing similarity between the disputed domain name and Complainant's mark in order to profit from the goodwill associated with the mark in bad faith under paragraph 4(b)(iv) of the Policy. See PRL USA Holdings, Inc. v. Ron LeeWIPO Case No. D2009-0269 (June 29, 2009); see also Utensilerie Associate S.p.A. v. C & M, WIPO Case No. D2003-0159 (April 22, 2003). 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.
Richard Hill
Sole Panelist
Dated: November 27, 2009
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