The Complainants are Dr. Martens International Trading GmbH, and Dr. Maertens Marketing GmbH (together the “Complainant”) of Gräfelfing, and Seeshaupt, Germany, represented by Beetz & Partner, Germany.
The Respondent is ye keyun of Xingguo, Jiangxi, China. 2. The Domain Name and Registrar
The disputed domain name is registered with B, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 27, 2012. On January 27, 2012, the Center transmitted by email to B, Inc. a request for registrar verification in connection with the disputed domain name. On January 30, 2012, 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 February 1, 2012, the Center transmitted an email to the parties in both Chinese and English language regarding the language of proceedings. On the February 2, 2012, the Complainant confirmed its request that English be the language of proceeding. The Respondent did not comment on the language of proceedings 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 February 9, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was February 29, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 1, 2012.
The Center appointed Douglas Clark as the sole panelist in this matter on March 16, 2012. 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. Language of Proceedings
The language of the Registration Agreement is in Chinese. Paragraph 11(a) of the Rules provides that:
“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.”
The Complainant requested the language of the proceeding for be in English on the following grounds:
“First all documents in support of this complaint have been filed in English.
The Registrar is an ICANN accredited Registrar with international standard. English should be understood.
The content of the website visible under the contested domain name is being performed in English only.
Consequently the owner of this website must be very likely to perfectly understand English.”
The first two grounds are not particularly compelling. The Complainant had a choice as to which language to file documents. To this Panel, the language the registrar does business in is irrelevant to the question of determining the appropriate language of proceedings.
However, in this case, the website associated with the disputed domain name was before it was shutdown written entirely in English and included the ability for 24 hour chatting in English. Further, the Respondent has not responded to the proceedings nor to the request that the language of the proceeding to be in English.
In the circumstances of this case, the Panel, therefore, determines that English shall be the language of the proceedings. The website under the disputed domain name was written entirely in English and designed to do business worldwide in English. There can be no doubt that the Respondent is able to handle these proceedings in English. 4. Factual Background
The Complainant is the registered proprietor of the trademarks DR MARTENS in class 25 for footwear registered and used in Europe, the United States of America, Canada, and China since the earliest in the 1980. The first registration in China was in 1981.
The disputed domain name was registered on December 4, 2011. Until recently it resolved to a webpage in English where Dr Martens shoes were advertised and sold. 5. Parties’ Contentions A. Complainant A.1 Identical or confusingly similar
The Complainant argues that the disputed domain name is made up of the registered trademark DR MARTENS to which the descriptive terms “footwear” has been added. It is therefore confusingly similar to the Complainant’s registered trademarks for DR MARTENS. A.2 No rights or legitimate interests
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name and the use of the website to sell Dr Martens footwear is like to confuse consumers as to some affiliation between the Complainant and the Respondent. A.3 Registered and used in bad faith
The Complainant submits that there is no doubt that before registration of the disputed domain name the Respondent knew of the Complainant’s rights in the trademark DR MARTENS and has registered the disputed domain name to attract Internet users for commercial gain. The provision of links on the website that gives the impression of being a genuine website of the Complainant is clearly use in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In this Panel’s view, this is a very simple case of clear domain name hijacking for the purposes of commercial gain which the UDRP was designed to stop. A. Identical or Confusingly Similar
The disputed domain name is made up of the registered trademark DR MARTENS and a descriptive term. The disputed domain name is clearly confusingly similar to the registered trademark DR MARTENS. The first part of the paragraph 4(a) of the Policy is therefore satisfied. B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests.
The use made by the Respondent of the website under the disputed domain name where the Complainant’s trademark features prominently makes it hard to imagine that the Respondent could ever establish any rights or legitimate interests.
None of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can prove its rights or legitimate interests, are present in this case. C. Registered and Used in Bad Faith
For the same reasons as those above, the Panel has no hesitation in finding that the disputed domain name was registered in bad faith and are being used in bad faith.
This case clearly falls within paragraph 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product or service on your web site or location.” 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Douglas Clark
Sole Panelist
Dated: April 2, 2011
Full & Egal Universal Law Academy