The Complainant is Karen Millen Fashions Limited of Witney, Oxfordshire, United Kingdom of Great Britain and Northern Ireland (the “United Kingdom”), represented by Heatons LLP, United Kingdom.
The Respondent is of London, United Kingdom. 2. The Domain Name and Registrar
The disputed domain name, (the “Domain Name”), is registered with Web Commerce Communications Limited dba WebN (the “Registrar”). 3. Procedural History
The Complaint was originally filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 25, 2011. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 25, 2011, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent (due to a miss-spelling in the registrant and contact information for the Domain Name). The Center sent an email communication to the Complainant on November 30, 2011 inviting the Complainant to submit an amendment to the Complaint correcting the error. On December 1, 2011, the Center received an email communication from the Complainant indicating that the Complainant would not be amending the Complaint.
The Center verified that save for the identification of the Respondent the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (“UDRP”), the Rules for the UDRP, and the WIPO Supplemental Rules for the UDRP.
In accordance with the Rules for the UDRP, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 12, 2011. In accordance with the Rules for the UDRP, paragraph 5(a), the due date for Response was January 1, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 6, 2011.
The Center appointed Tony Willoughby as the sole panelist in this matter on January 19, 2012. The Panel found that it was properly constituted. The Panel submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
However, on receipt of the case file, the Panel noticed that the administrative process had in error proceeded in accordance with the requirements of the UDRP instead of the policy applicable to the Domain Name, i.e. the CentralNic Dispute Resolution Policy (the “Policy”). On February 7, 2012 the Panel issued a procedural order requesting that the Complainant amend the Complaint to identify the Respondent correctly and that the Center re-notify the Complaint to the Respondent under the Policy.
On February 7, 2012 the Complainant filed an amended Complaint, but yet again failed to identify the Respondent correctly. The Center drew this to the attention of the Complainant by email on February 10, 2012 and on the same day the Complainant submitted an amendment to the Complaint accurately identifying the Respondent.
The Center verified that the Complaint satisfied the formal requirements of the Policy, the Rules for the Policy (the “Rules”), and the WIPO Supplemental Rules for the 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 February 17, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was March 8, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 9, 2012. 4. Factual Background
The Complainant is an established retailer of clothing trading under and by reference to its name and trade mark, KAREN MILLEN. It is the registered proprietor of various trade mark registrations including Community Trade Mark No. 000814038 filed on April 27, 1998 and registered on October 13, 1999, KAREN MILLEN (word) in inter alia class 25 for “articles of clothing, footwear and headgear”.
The Domain Name was registered on April 28, 2011. As at November 2, 2011 the Domain Name appears from the Complainant’s evidence (Annex 4) to have been connected to a website offering for sale ladies’ clothing under and by reference to the name KAREN MILLEN. Annex 3 is indistinct and the Panel has been unable to access the website connected to the Domain Name, but the Complainant’s evidence in this regard has not been challenged and the Panel accepts it as fact.
The contact details of the Respondent are false. The address given, namely 21 Karen Millen Street, Greate (sic) London 526235 is a false address. The street does not exist, nor is the postcode a London postcode. The Center’s couriers have verified that the address is non-existent. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name (at the third level) is identical to the Complainant’s registered trade mark KAREN MILLEN.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. It asserts that the Respondent has no connection with the Complainant and asserts further (without any supporting evidence) that the clothing sold via the Respondent’s website “has been verified as being counterfeit and these sales have been causing considerable damage to the Complainant’s business.”
Finally, the Complainant contends that the Respondent has registered and is using the Domain Name in bad faith in that it has been registered and is being used for one purpose and one purpose only, namely the sale of counterfeit KAREN MILLEN clothing. It further asserts that complaints have been made by consumers to the Complainant’s customer service representatives over the poor quality of the goods purchased via the named Respondent’s website, but again no supporting evidence has been provided. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. General
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must: (a) have participated in a CentralNic Mediation to which the Respondent was a party and which involved the Domain Name and that Mediation must have terminated1 and (b) must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered or is being used in bad faith. B. Identical or Confusingly Similar
The Domain Name comprises the Complainant’s trade mark and the generic ‘.’ domain suffix. It being permissible to ignore the domain suffix when assessing identity and confusing similarity for the purposes of paragraph 4(a)(i) of the Policy, the Panel finds that the Domain Name is identical to a trade mark in which the Complainant has rights. C. Rights or Legitimate Interests
The Complainant asserts that the website to which the Domain Name was connected was offering for sale counterfeit KAREN MILLEN clothing. If that is the case, the Respondent cannot sensibly be said to have any rights or legitimate interests in respect of the Domain Name.
While the Complainant has not seen fit to support that assertion with any evidence, the Panel accepts that the fact that the Respondent has filed false contact details with the Registrar and using a registrant name which is a miss-spelling of the Domain Name, renders it very likely that the Complainant’s unsupported assertion is well-founded.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. D. Registered or Used in Bad Faith
On the same basis, the Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(iv) of the Policy. 7. Decision
For the foregoing reasons, the Panel directs that the Domain Name, , be transferred to the Complainant.
Tony Willoughby
Sole Panelist
Dated: March 14, 2012
1 CentralNic has so confirmed.
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