The Complainant is Links (London) Limited d/b/a Links of London of London, United Kingdom of Great Britain and Northern Ireland, represented by The GigaLaw, Douglas M. Isenberg, Attorney at Law, LLC, United States of America.
The Respondent is “Barack Hussein Obama Jr”, , jay daddy, bobo, Eastern Washington University and of United States of America; Sami Hooti and zou dapeng of United Kingdom of Great Britain and Northern Ireland; liu shi an/liu ji, liu ji, zou gou hao, zou dapeng and liu ji of the People’s Republic of China. 2. The Domain Names and Registrars
The disputed domain names , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , and are registered with GoD, Inc.
The disputed domain names , , , , , , , , , , , , , , , , , , and are registered with eNom.
The disputed domain names and are registered with HiChina Zhicheng Technology Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 23, 2011. On May 23, 2011, the Center transmitted by email to GoD, Inc., eNom and HiChina Zhicheng Technology Ltd. a request for registrar verification in connection with the disputed domain names. On May 23, 2011 and May 24, 2011, eNom, GoD, Inc. and HiChina Zhicheng Technology Ltd. transmitted by email respectively to the Center their verification responses confirming that the Respondent is listed as the registrant and providing the contact details.
In its email communication of May 24, 2011, HiChina Zhicheng Technology Ltd. confirmed to the Center that the language of the Registration Agreement of the disputed domain names and is Chinese. On May 25, 2011, the Center transmitted an email communication to the parties in both Chinese and English regarding the language of the proceeding. On the same day, 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 May 31, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was June 20, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 21, 2011.
The Center appointed Yijun Tian as the sole panelist in this matter on June 28, 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 A. Complainant
The Complainant, Links (London) Limited d/b/a Links of London, a company incorporated in London, United Kingdom. Complainant was founded in 1990 and is an iconic international jewellery brand. The Complainant owns numerous trademark registrations for marks that consist of or include the term LINKS or LINKS OF LONDON, worldwide, including the United Kingdom (registered in 1995), the United States (registered in 2001) and China (registered in 2002) (Annex 9 to the Complaint). B. Respondent
Respondent (identified variously as "Barack Hussein Obama Jr”, “Sam Hooti”, et al.) registered the disputed domain names between April 16, 2009, and April 13, 2011. The Respondent is using the disputed domain names in connection with various websites (or no websites at all), such as websites that offer for sale jewelry in competition with the Complainant’s own products, websites with parking pages and websites with random blog-type content. (Annex 8 to the Complainant). 5. Parties’ Contentions A. Complainant
(a) The disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
- The Complainant is the owner of numerous trademark registrations worldwide that consist of or contain the mark LINKS or LINKS OF LONDON, including the United Kingdom, the United States, China et al. (Annex 9 to the Complaint).
- Each of the disputed domain names is confusingly similar to Complainant’s LINKS trademark.
- Each of the disputed domain names contains the word “links” (or “link”) and “London”, except for the following of the disputed domain names, each of which contains only the word “links” but not the word “London”: , , , and .
- The addition of certain words to many of the disputed domain names - such as “buy”, “discount”, “jewellerys” and “best” – do not distinguish the disputed domain names from the LINKS trademark.
- Given that many of the words in the disputed domain names are related to the Complainant’s goods (such as “buy”, “discount”, “jewellerys” and “best” ), “the addition of [such] words can ‘exacerbate[] the confusing similarity between the [Complainant’s] trademark and the Domain Name and increase[] the risk of confusion between the Domain Name and the … trademarks”.
- With respect to those of the disputed domain names that do not contain the word “of” that appears in many of the Complainant’s LINKS trademarks, this difference does nothing to avoid confusing similarity.
- With respect to those of the disputed domain names that do not contain the word “London”, the Complainant notes that many of the LINKS trademarks also do not contain the word “London”, so the relevant comparison for these disputed domain names is with the trademark LINKS, not LINKS OF LONDON.
- Finally, “the overall impression of the designation” of each of the disputed domain names is one of “being connected to the trademark of Complainant”.
(b) The Respondent has no rights or legitimate interests in respect of the disputed domain names.
- The Respondent has no rights or legitimate interests in any of the disputed domain names. The Complainant has never assigned, granted, licensed, sold, transferred or in any way authorized the Respondent to register or use the LINKS Trademark in any manner.
- Previous UDRP panels under the Policy have found that a lack of legitimate rights or interests exists where, as here, “Complainant asserts that it has not authorized Respondent to use the mark”.
- The Respondent has never used, or made preparations to use, any of the disputed domain names or any name corresponding to any of the disputed domain names in connection with a bona fide offering of goods or services. Instead, as shown in Annex 8 to the Complaint, the Respondent is using each of the disputed domain names in connection with various websites (or no websites at all), such as
websites that offer for sale jewelry in competition with the Complainant’s own products (many if not all of which appear to offer counterfeit merchandise), websites with “parking pages,” and websites with random blog-type content. Numerous previous UDRP panels have found that such uses are not bona fide.
- The Respondent has never been commonly known by any of the disputed domain names and has never acquired any trademark or service mark rights in any of the disputed domain names.
- In addition, given the Complainant’s established registration of the LINKS trademark for more than 15 years, it is unlikely that the Respondent is commonly known by this trademark.
- The Respondent is not making a legitimate noncommercial or fair use of any of the disputed domain names, without intent for commercial gain misleadingly to divert consumers or to tarnish the Complainant’s LINK trademark.
(c) The disputed domain names were registered and are being used in bad faith.
- Each of the disputed domain names should be considered as having been registered and used in bad faith by the Respondent.
- The Respondent is using each of the disputed domain names in connection with various websites (or no websites at all), such as websites that offer for sale jewelry in competition with the Complainant’s own products (many if not all of which appear to offer counterfeit merchandise), websites with “parking pages” and websites with random blog-type content. (Annex 8 to the Complaint)
- Further, many of the websites associated with the disputed domain names contain a logo that is identical or similar to the Complainant’s logo. (Annex 8 to the Complaint)
- A further indication of bad faith under the Policy is the fact that the Complainant’s LINKS trademark pre-dates the Respondent’s registration of each of the disputed domain names (see Annex 2 and Annex 9 to the Complaint) and, therefore, the Respondent knew or should have known of the LINKS trademark.
- Further, the Respondent’s provision of obviously fictitious or fraudulent information in registering the disputed domain names (WhoIs printouts in Annex 2 to the Complaint) is evidence of bad faith.
- Finally, in light of the widespread use and protection of the LINKS trademark, “it is inconceivable that Respondent chose the contested domain name without knowledge of Complainant’s activities and the name and trademark under which Complainant is doing business”. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding and Consolidation
Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. According to information from the concerned registrar, the language of the Registration Agreements for the 60 of 62 disputed domain names is English. Therefore, the language of the proceeding for these 60 disputed domain names shall be English.
In respects to two other disputed domain names, according to information from the concerned Registrar, HiChina Zhicheng Technology Ltd., the language of the Registration Agreement for the disputed domain names and is Chinese. From the evidence presented on the record, no agreement appears to have been entered into between the Complainant and the Respondent to the effect that the language of the proceeding should be English. However, the Complainant filed initially its Complaint in English, and has requested that English be the language of the proceeding for the following reasons:
(a) In previous UDRP decisions under the Policy, panels have exercised their authority to conduct proceedings in English where requested by a complainant, despite a registrar’s notification that the relevant registration agreement was in a language other than English, where the following have been shown to exist:
(i) “the website [using the Disputed Domain Name] only operates in the English language”; and
(ii) “the disputed domain name … is” in English.
(b) In this case, both of the conditions described in the preceding paragraph are present here:
(i) as shown in Annex A and Annex B to the Complainant’s language request, the Respondent’s websites using each of the disputed domain names and are in English; and
(ii) each of the disputed domain names and is in English (given that “shopping” and “outlet” are English words and that the Complainant’s trademarks use these disputed domain names are in English).
(c) To allow otherwise would be to apply “a strict and unbending application of paragraph 11 [that] may result in delay, and considerable and unnecessary expenses of translating documents”.
The Respondent did not make any submissions with respect to the language of the proceeding and did not object to the use of English as the language of the proceeding.
Paragraph 11(a) allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui'erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593). The language finally decided by the Panel for the proceeding should not be prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case. (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004). The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (the “WIPO Overview 2.0.”) further states: “ in certain situations, where the respondent can apparently understand the language of the complaint (or having been given a fair chance to object has not done so), and the complainant would be unfairly disadvantaged by being forced to translate, the WIPO Center as a provider may accept the language of the complaint, even if it is different from the language of the registration agreement”. (WIPO Overview 2.0, paragraph 4.3; see also L’Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585).
The Panel has taken into consideration the facts that the Complainant is a United Kingdom company, and the Complainant will be spared the burden of dealing with Chinese as the language of the proceeding. The Panel has also taken into consideration the facts that the websites at the disputed domain names include English words “shopping” and “outlet” (Expoconsult B.V. trading as CMP Information v. Roc Guan, WIPO Case No. D2008-1600; Compagnie Gervais Danone v. Xiaole Zhang, WIPO Case No. D2008-1047).
On the record, the Respondent (registrants of these two domain names) appears to be China based individual who may or may not be Chinese speakers (although the names of Registrant have a Chinese sound). (Annex 1 to the Complaint). The Panel finds evidence in the present proceeding to suggest that Respondent has knowledge of English rather than Chinese. In particular, the Panel notes that (a) the disputed domain names and have been registered in English, rather than Chinese script; (b) the websites at the disputed domain names are English-based website and the Respondent is apparently doing business in English through these websites (Annex A and Annex B to the Complaint); (c) the websites appear to have been directed to users in UK (particularly English speakers) rather than Chinese speakers; (d) the prices of products on the websites are in English pounds; (e) the Center has notified the Respondent of the proceedings in both Chinese and English, and the Respondent has indicated no objection to the Complainant’s request that English be the language of the proceeding; (f) the Center informed the Respondent that it would accept a Response in either English or Chinese.
Considering these circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both parties and is not prejudicial to either one of the parties in his or her ability to articulate the arguments for this case. Having considered all the matters above, the Panel determines under paragraph 11(a) that English shall be the language of the proceeding, and the decision will be rendered in English.
The Panel is further satisfied that, in the circumstances of the present dispute, the case is one that is suitable for consolidation and resolution in a single UDRP proceeding. See further the discussion of applicable principles and jurisprudence in paragraph 4.16 of the WIPO Overview 2.0. 6.2 Discussion and Findings
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the disputed domain names registered by the Respondent are identical 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 names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
On the basis of the evidence introduced by the Complainant and in particular with regard to the content of the relevant provisions of the Policy, (paragraphs 4(a), (b), (c)), the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in numerous trademark registrations worldwide that consist of or contain the mark LINKS or LINKS OF LONDON, including the United Kingdom, the United States, China et al., (Annex 9 to the Complaint) and enjoys a widespread reputation in the world.
This UDRP Complaint is being filed against “Barack Hussein Obama Jr” et al. with respect to 62 disputed domain names set forth in Annex 1 to the Complaint. Each of the disputed domain names contains the word “links” (or “link”) and “London” entirely, except for the following of the disputed domain names, each of which contains only the word “links” but not the word “London”: , , , and . The addition of certain words to many of the disputed domain names - such as “buy”, “discount”, “jewellerys” and “best” – are descriptive or non-distinctive words and do not distinguish the disputed dispute names from the LINKS Trademark.
Previous UDRP panels have consistently held that a domain name is identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name” (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662).
Generally a user of a mark “may not avoid likely confusion by appropriating another's entire mark and adding descriptive or non-distinctive matter to it”. (The Argento Wine Company Limited v. Argento Beijing Trading Company,WIPO Case No. D2009-0610; General Electric Company v. CPIC NET and Hussain Syed,WIPO Case No. D2001-0087; PCCW-HKT DataCom Services Limited v. Yingke, HKIAC Case No. 0500065).
Thus, the Panel finds that the use of these words (such as “buy”, “discount”, “jewellerys” and “best” ) is not sufficient to negate the confusing similarity between the disputed domain names and the trademark. By contrast, “the addition of certain words can “exacerbate[] the confusing similarity between the [Complainant’s] trademark and the Domain Name and increase[] the risk of confusion between the Domain Name and the… trademarks”. (B & H Foto & Electronics Corp. v. Joel Deutsch,WIPO Case No. D2010-2121)
The Panel therefore holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the disputed domain names:
(i) use of, or preparations to use, the disputed domain names in connection with a bona fide offering of goods or services;
(ii) the fact that the Respondent has commonly been known by the disputed domain names; and
(iii) legitimate noncommercial or fair use of the disputed domain names.
The overall burden of proof on this element rests with the Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a disputed domain name, the burden shifts to the respondent to rebut the complainant’s contentions. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Danzas Holding AG , DHL Operations B.V. v. Ma Shikai,WIPO Case No. D2008-0441; WIPO Overview 2.0, paragraph 2.1 and cases cited therein).
The Complainant has prior rights in the trademark (since 1995) which precede the Respondent's registration of the disputed domain names (between April 16, 2009 and April 13 2011) by over 14 years. According to the Complainant, the Respondent is not an authorized dealer of LINKS or LINKS OF LONDON branded products. The Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names and thereby shifted the burden to the Respondent to produce evidence to rebut this presumption (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra; 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).
Based on the following reasons the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names:
(a) There has been no evidence adduced to show that the Respondent is using the disputed domain names in connection with a bona fide offering of goods or services. The Respondent has not provided evidence of a legitimate use of the disputed domain names or reasons to justify the choice of the word “links” or “links of London” in its business operations. There has been no evidence to show that the Complainant has licensed or otherwise permitted the Respondent to use the trademarks or to apply for or use any domain name incorporating the trademarks; (“Th[is] fact, on its own, can be sufficient to prove the second criterion [of the Policy]”. Six Continents Hotels, Inc. v. IQ Management Corporation,WIPO Case No. D2004-0272)
(b) There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names. There has been no evidence adduced to show that the Respondent has any registered trademark rights with respect to the disputed domain names. Respondent registered the disputed domain names between April 16, 2009 and April 13, 2011.
(c) There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names. By contrast, the Respondent is using each of the disputed domain names in connection with various websites (or no websites at all), such as websites that offer for sale jewelry in competition with the Complainant’s own products (many if not all of which appear to offer counterfeit merchandise), websites with “parking pages” and websites with random blog-type content. (Annex 8 to the Complaint).
The Panel finds that the Respondent has failed to produce any evidence to establish its rights or legitimate interests in the disputed domain names. The Panel therefore holds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the domain name in bad faith, namely:
(i) circumstances indicating that the Respondent has registered or 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 the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the Respondent has 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 the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website 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 the Respondent’s website or location or of a product.
The Panel concludes that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case and upon the evidence of these circumstances and other relevant circumstances, it is adequate to conclude that the Respondent has registered and used the disputed domain names in bad faith. (a) Registered in Bad Faith
The Panel finds that the Complainant enjoys a widespread reputation in the trademarks with regard to its products. The Complainant is the owner of numerous trademark registrations worldwide that consist of or contain the mark LINKS or LINKS OF LONDON, including the United Kingdom (1995), the United Sates (2001), China (2002) et al. (Annex 9 to the Complaint). It is not conceivable that the Respondent would not have had actual notice of the Complainant’s trademark rights at the time of the registration of the disputed domain names (2009-2011). The Panel therefore finds that the trademarks are not one that traders could legitimately adopt other than for the purpose of creating an impression of an association with the Complainant. (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra). Moreover, the Respondent has chosen not to respond to the Complainant’s allegations in the Complaint. According to the panel’s decision in The Argento Wine Company Limited v. Argento Beijing Trading Company, supra, “the failure of the Respondent to respond to the Complaint further supports an inference of bad faith”. (see also Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc.,WIPO Case No. D2002-0787). Thus, the Panel concludes that the disputed domain names were registered by the Respondent in bad faith with the intent to create an impression of an association with the Complainant’s products. (b) Used in Bad Faith
The Complainant has adduced evidence to prove that by using confusingly similar disputed domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s websites offering the Complainant’s Links or Links of London products. The Complainant claimed that the Respondent attempted to sell counterfeit Links branded products on its website, and said “Respondent is using each of the Disputed Domain Names in connection with various websites (or no websites at all), such as websites that offer for sale jewelry in competition with Complainant’s own products (many if not all of which appear to offer counterfeit merchandise), websites with ‘parking pages’ and websites with random blog-type content (Annex 8)”. Most of these products are blatant counterfeit, and determined by Complainant’s examination of the photographs appearing in the Respondent’s website (see Annex 8 to the Complaint).
To establish an “intention for commercial gain”, evidence is required to indicate that it is “more likely than not” that intention existed (The Argento Wine Company Limited v. Argento Beijing Trading Company, supra; Wal-Mart Stores, Inc. and Wal-Mart China Co. Ltd v. Liangchenyong, ADNDRC Case No. HKcc-0800008).
Given the widespread reputation of the trademarks, the Panel finds that the public is likely to be confused into thinking that the disputed domain names have a connection with the Complainant, contrary to the fact. There is a strong likelihood of confusion as to source, sponsorship, affiliation or endorsement of the websites to which the disputed domain names are resolved (see Annex 8 to the Complaint). In other words, the Respondent has through the use of a confusingly similar disputed domain names created a likelihood of confusion with the trademarks. Noting also that apparently no clarification as to the Respondent’s relationship to the Complainant is made on the homepage of the disputed domain names, potential partners and end users are led to believe that the websites with disputed domain names are either the Complainant’s sites or the sites of official authorized partners of the Complainant, which it is not. Moreover, the Respondent has not responded to the Complaint. The Panel therefore concludes that the disputed domain names were used by the Respondent in bad faith.
In summary, the Respondent, by choosing to register and use disputed domain names which are confusingly similar to the Complainant’s well-known trademarks, intended to ride on the goodwill of the Complainant’s trademarks in an attempt to exploit, for commercial gain, Internet users destined for the Complainant. In the absence of evidence to the contrary and rebuttal from the Respondent, the choice of the disputed domain names and the conduct of the Respondent as far as the websites on to which the disputed domain names resolve are indicative of registration and use of the disputed domain names in bad faith.
The Panel therefore holds that the Complaint fulfils the third condition of 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 following disputed domain names be transferred to the Complainant:
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Yijun Tian
Sole Panelist
Dated: July 21, 2011
Full & Egal Universal Law Academy