The Complainant is Moncler S.r.l. of Milano, Italy, represented by Studio Legale Jacobacci e Associati, Italy.
The Respondent is xie guoren of Putian, Fujian Province, the People’s Republic of China. 2. The Domain Names and Registrar
The disputed domain names , , and
are registered with B, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 13, 2010. On December 14, 2010, the Center transmitted by email to B, Inc. a request for registrar verification in connection with the disputed domain names. On December 15, 2010, 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 December 16, 2010, the Center transmitted an email communication to the parties in both Chinese and English regarding the language of the proceeding. On December 17, 2010, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified 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 December 23, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 12, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 13, 2011.
The Center appointed Dr. Hong Xue as the sole panelist in this matter on January 20, 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 Complainant is a company in the field of sportswear and sport bags. The Complainant is the owner of the trademark MONCLER that has been registered in the United States, China and many other countries.
The Respondent registered the disputed domain name on December 1, 2010, on November 1, 2010, on October 22, 2010 and on October 27, 2010. 5. Parties’ Contentions A. Complainant
The Complainant states that it is a company in the field of sportswear and sport bags and owns the registered trademark MONCLER in many countries and regions.
The Complainant contends that the Respondent’s disputed domain names, i.e. , , and , are confusingly similar to the MONCLER trademark in which the Complainant has rights.
The Complainant contends that the Respondent had no rights or legitimate interests in respect of the disputed domain names.
The Complainant contends that the disputed domain names were registered and are being used in bad faith.
The Complainant requests that the Panel issue an order that the all disputed domain names , , and be transferred to it. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of Proceeding
The language of the registration agreements for the disputed domain names specified above, as confirmed by the Registrar, is Chinese. The Complainant has requested that the language of the proceeding be English and has presented the reasons. The Respondent did not make any submissions in relation to the language of the proceeding even though the Center’s communications to this effect (as was the Notification of Complaint) were both in English and in Chinese.
According to 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.
Among other circumstances, the respondent’s ability to clearly understand the language of the complaint, and the complainant’s being disadvantaged by being forced to translate, may in appropriate circumstances both support a panel’s determination that the language of the proceeding remains the language of the complaint, even if it is different from the language of the registration agreement (L’Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585).
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 a panel shall objectively assess the Parties’ language ability in the proceeding.
In the present case, the Panel finds that the Respondent has sufficient capacity to understand and use English. The Panel notes that the website at the disputed domain name, , displays the contents in English. On the other hand, the Complainant has submitted the Complaint in English and would bear considerable costs to translate all the submissions into and take part in the proceeding in the language of the registration agreement.
Having considered all the circumstances, this Panel determines under the Rules, paragraph 11(a) that English shall be the language of the proceeding. B. Identical or Confusingly Similar
According to the Policy, paragraph 4 (a)(i), a complainant must prove that a disputed 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 identity or confusing similarity between the disputed domain name and its trademark.
The Panel finds that before the registration of the disputed domain names the Complainant has acquired the trademark right over the mark MONCLER through registrations in a number of countries and regions, including China which is the Respondent’s country of residence.
The disputed domain names are , , and .
Apart from the generic top-level domain suffix “.com”, all 4 disputed domain names are in “moncler + generic word” model. All generic words added after “moncler”, i.e. “global”, “power”, “products” and “shops”, are directly related to the Complainant’s business of sportswear and sports bags that has long been marked under MONCLER.
It is established by numerous decisions made under the Policy that adding generic words that are related to a complainant’s business is likely to lead the panel to find a confusing similarity between the disputed domain name and the complainant’s trademark (Marriott International, Inc. v. Cafe au lait, NAF Claim No. FA93670). Therefore, the disputed domain names comprising of the Complainant’s registered trademark MONCLER in its entirety and other descriptive words related to the Complainant’s business are confusingly similar to the Complainant’s registered trademark MONCLER.
Accordingly, 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 has no rights or legitimate interests in the disputed domain names and, as stated above, the Respondent did not provide any information to the Panel asserting any rights or legitimate interests it may have in the disputed domain names.
It is apparent from the Complaint that there is no connection between the Respondent and the Complainant or its business. The Respondent did not rebut the Complainant’s contention that the disputed domain names were not used in connection with any bona fide offering of goods or services. The lack of a Response in this case 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 names.
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 is using the disputed domain names in bad faith. The Respondent did not respond.
The Complainant presents the evidence that the disputed domain names are being used for websites that possibly sell counterfeit Moncler products. Since the disputed domain names were registered and are fully controlled by the Respondent, the Respondent is responsible for any use of them. Such use of the disputed domain names is highly likely to attract and confuse the consumers with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the disputed domain names’ websites or of the products on the websites. The Panel therefore finds that it is adequate to conclude that the Respondent has registered and is using the disputed domain names 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 disputed domain names , , and be transferred to the Complainant.
Dr. Hong Xue
Sole Panelist
Dated: February 3, 2011
Full & Egal Universal Law Academy