The Complainant is Feiyue of Paris, France represented by Cabinet Moutard of France.
The Respondent is Hudietrade of Fujian, the People’s Republic of China. 2. The Domain Names and Registrar
The disputed domain names ; and are registered with N LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 3, 2010. On December 3, 2010, the Center transmitted by email to N LLC. a request for registrar verification in connection with the disputed domain names. On December 4, 2010, N LLC 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 December 8, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was December 28, 2010. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on January 5, 2011.
The Center appointed Clive Duncan Thorne as the sole panelist in this matter on January 7, 2011. 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 evidence from the Complainant is that it has a series of trade marks incorporating the mark FEIYUE
which had been registered for, inter alia, its footwear range. These include the following:
(i) International Trade Mark No. 948536 for the mark FEIYUE plus logo registered on November 14, 2007 (based on French Trade Mark Registration No. 063426388 dated May 2, 2006 (designating Community Trade Mark, EU and USA. This trade mark is in Class 25 for the following goods "footwear (except for orthopaedic footwear); clothing; headgear."
(ii) European Community Trade Mark for the mark FEIYUE plus device No. 005085873 registered on May 11, 2007. This covers the following specification of goods; "canvas shoes, vulcanized shoes, sneakers, beach shoes, football shoes, gymnastic shoes, shoes, sports shoes, boots, boots for sports, football boots, ski boots, belts, caps, clothing, leather clothing, coats, footwear, jackets, jerseys, knitwear, shirts, skirts, socks sweaters, tee-shirts, trousers, underwear, uniforms and vests."
(iii) European Community Trade Mark for the mark FEIYUE plus device No. 006362669 filed on November 2, 2007 in respect of "footwear (except orthopaedic), clothing; headgear."
(iv) French Trade Mark for the mark FEIYUE plus device No. 063426388 filed on May 2, 2006 and registered on October 6, 2006 in respect of the following goods, "footwear (except orthopaedic) clothing; headgear."
The Complainant has referred to the marks set out above in its Complaint. It states that the marks are used especially for shoes. It also points out that the Complainant is also the owner of numerous other trade marks throughout the world incorporating the mark FEIYUE.
In the absence of any evidence to the contrary filed by the Respondent, the Panel accepts that the Complainant has trade mark rights for the mark FEIYUE plus device.
The disputed domain names and were registered on November 8, 2010, and the disputed domain name was registered on November 11, 2010. 5. Parties’ Contentions A. Complainant
1. The Complainant asserts that it has trade mark rights in the mark FEIYUE and that the disputed domain names are identical or confusingly similar to a trade mark in which the Complainant has rights within paragraph 4(a)(i) of the Policy.
2. The Respondent has no rights or legitimate interests in respect of the domain names. In particular, the Complainant points out that there is no evidence of the use of the domain names ; and in connection with a bona fide offering of goods or services. The Respondent has not been commonly known by the disputed domain names.
3. The disputed domain names were registered and are being used in bad faith.
The Complainant asserts that when registering and using the domain names ; 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 marks. Concerning the domain name , the Complainant asserts that it was obviously registered in bad faith even if it is not used. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
For the reasons set out above, the Panel is satisfied that the Complainant has pre-existing trade mark rights for the mark FEIYUE plus device.
The Complainant also submits that the disputed domain names ; and are similar to the trade marks FEIYUE.
The Complainant points out that the word "chaussure" used in the domain name means shoes in French. The Complainant points out that terms "chaussure" and "shoe" are descriptive and that the only distinctive part of the domain names is the common use of the mark FEIYUE. It submits that the terms "chassure-feiyue" and "feiyue-shoe" are phonetically, visually and conceptually very similar to the Complainant's trade mark, FEIYUE plus device.
The Panel accepts that the disputed domain names are confusingly similar to a trade mark or service mark in which the Complainant has rights. The Complainant therefore succeeds with regard to this element. B. Rights or Legitimate Interests
The Respondent has no rights or legitimate interests in respect of the domain names.
In support of the submission, the Complainant submits the following:
(i) There is no evidence of the use of the disputed domain names in connection with a bona fide offering of goods or services.
(ii) The Respondent has not been commonly known by the disputed domain names.
(iii) The Respondent is making "illegitimate, commercial and non-fair uses of the domain name". Consumers are misled and confused because when they buy shoes from the Respondent's website, they think that there is an association with the Complainant. They are led to believe that disputed domain names ; and are domain names which belong to the Complainant.
It follows, in the absence of any evidence from the Respondent and based on the available record, that the Respondent has no rights or legitimate interests in respect of the disputed domain names and that the Complainant has succeed in this element also. C. Registered and Used in Bad Faith
The disputed domain names were registered and are being used in bad faith.
(i) The Complainant submits that the registration and use of the disputed domain names and are evidence that the Respondent has intentionally attempted to attract, for commercial gain, Internet users.
(ii) Moreover the use of the disputed domain names and is an indication that the Complainant has approved or is the source of the shoes sold on the Respondent's website. There is evidence set out in Annex 4 to the Complaint that the Respondent has copied the content of the Complainant's website. The Complainant cites examples of the "historical part" of the website of the disputed domain names and which are similar. The Complainant submits that this is evidence of consumer confusion so that the average consumer will be under the impression that the shoes sold on the Respondent's websites are shoes sourced from the Complainant.
(iii) With respect to the domain name , the complainant asserts that it was registered in bad faith and that “there are many clues which show that Respondent will intentionally attract, for commercial gain,” Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trade marks.
In the absence of any evidence to the contrary from the Respondent, the Panel accepts that the evidence is sufficient to justify a finding that the disputed domain names were registered and used in bad faith. Accordingly, the Complainant succeeds in proving this element. It follows that the Complainant has succeeded in proving its Complaint. 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 names ; and be transferred to the Complainant.
Clive Duncan Thorne
Sole Panelist
Dated: January 20, 2011
Full & Egal Universal Law Academy