The Complainants are Doserno Trading Limited of Nicosia, Cyprus and Red Diamond Holdings Sarl of Senningerberg, Luxembourg, represented by Office Ernest T. Freylinger S.A., Luxembourg (the “Complainants”).
The Respondent is Bruce Chang of Xi'An Shanxi, China. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 10, 2012. On February 10, 2012, the Center transmitted by email to GoD, LLC. a request for registrar verification in connection with the disputed domain name. On the same date, GoD, 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 Complainants filed an amendment to the Complaint on February 17, 2012 in response to a notification by the Center that the Complaint was administratively deficient concerning the mutual jurisdiction to which the Complainants had submitted.
The Center verified that the Complaint together with the amendment to 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 20, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was March 11, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 12, 2012.
The Center appointed Stefan Abel 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. 4. Factual Background
The Complainant Doserno Trading Limited is the registered owner of numerous trademarks containing the word element LEE COOPER in various countries all over the world covering in particular clothing and accessories. These trademarks have been registered for many years and include the international trademark No. 626841 designating a large number of countries, including China, which has been registered on September 30, 1994, for goods such as clothing, shoes and others. The Complainant Dorsano Trading Limited has assigned its trademarks in April 2011 to the second Complainant Red Diamond Holdings Sarl.
The Respondent registered the disputed domain name on June 22, 2011. The Respondent’s website at the disputed domain name contains a number of links to numerous commercial websites offering fashion products including jeans of competitors.
The website under the disputed domain name indicates that the domain name is for sale. Having received a warning letter by the Complainants, the Respondent offered to transfer the disputed domain name initially for EUR 6,500 and then for EUR 5,000 indicating that many people would access this domain name who are all potential customers of the Complainants. 5. Parties’ Contentions A. Complainants
In summary, the Complainant’s contentions are as follows:
The Complainants own numerous trademarks LEE COOPER which are protected throughout the world, including in China. These trademarks are very well known, especially in the field of clothing and accessories.
The disputed domain name is identical to the numerous trademarks LEE COOPER, which creates a high risk of confusion.
The Complainants have used the trademark LEE COOPER in connection with a wide variety of products and services in China and around the world.
The Respondent has no prior rights or legitimate interests in the disputed domain name. The registration of the numerous LEE COOPER trademarks preceeded the registration of the disputed domain name and the use of a domain name in connection with a domain parking service providing commercial adds and sponsored links, some of which are competing with the services offered by the Complainants, constitutes bad faith use. Further, bad faith use and registration is demonstrated by Respondent’s offer to sell the disputed domain name for valuable consideration in excess of the Respondent’s out-of-pocket costs and by the fact that the warning letter could not be addressed by post to the Respondent’s name and address.
The Complainants request that the disputed domain name be transferred from the Respondent to the second Complainant Red Diamond Holdings Sarl. B. Respondent
The Respondent did not reply to Complainants’ contentions. 6. Discussion and Findings
The Policy provides for transfer of a domain name if the Complainants establish each of the following elements set out in paragraph 4(a)(i) to (iii) of the Policy:
- The Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights; and
- The Respondent has no rights or legitimate interests in respect of the domain name; and
- The domain name has been registered and is being used in bad faith.
Paragraph 4(b) of the Policy sets out certain circumstances which, in particular, but without limitation, shall be evidence of registration and use of the disputed domain name in bad faith. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to the Complainants’ registered trademarks LEE COOPER. The disputed domain name consists of the two word elements of the Complainants’ trademarks in the same order. The only difference is the missing space between the element LEE and the element COOPER which, however, does not modify the overall impression of the disputed domain name which is at least highly similar to the Complainants’ trademarks given that it consists of the same word elements in the same order as the word elements of the Complainants’ trademarks.
The top level domain “.info” does not affect this finding since this part of the disputed domain name is not perceived by the public as an indicator of origin. B. Rights or Legitimate Interests
There is no indication that the Respondent is licensed or otherwise authorized by the Complainants to use their registered trademarks or to register the disputed domain name.
The disputed domain name does not have any apparent generic or descriptive meaning and the term “leecooper” is not designation for a person, company, services or products on the website of the disputed domain name.
By producing evidence on these circumstances, the Complainants have established a prima facie case, that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of submitting evidence therefore shifts to the Respondent. The Respondent must then by concrete evidence demonstrate its rights or legitimate interests in that domain name in order to refute the prima facie case. The Respondent has made no such showing. The Panel finds that the Respondent’s default in refuting the prima facie case made by the Complainants is sufficient to establish this element of the Policy. It is an often impossible task for a complainant to prove a negative that is primarily within the knowledge of the respondent such as lack of rights or legitimate interests in the domain name. Producing evidence that the Respondent prima facie has no rights or legitimate interests in the disputed domain name must therefore be regarded as sufficient to establish the requirement of paragraph 4(a)(ii) if the Respondent fails to rebut the prima facie case. This finding is consistent with the consensus in previous UDRP decisions since e.g. Belupo d.d.v. WACHEM d.o.o., WIPO Case No. D2004-0110. C. Registered and Used in Bad Faith
The Panel finds that the Complainants have established this element in accordance with paragraph 4(b)(i) and (iv) of the Policy for the following reasons.
The Panel finds that, by using the disputed domain name for a set of pay-per-click-links to commercial websites offering jeans and other clothing, the Respondent has intentionally attempted to attract for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainants’ LEE COOPER trademarks as to source, sponsorship and affiliation of the website (paragraph 4(b)(iv) of the Policy).
The Panel finds that the Respondent acted intentionally. It is not conceivable to the Panel that the Respondent could have registered the disputed domain name without having the Complainants’ trademarks in mind. The Respondent’s intention to use the disputed domain name as a reference to the Complainants’ trademarks is obvious considering that no rights or legitimate interests in using the disputed domain name are apparent, that the Complainants own numerous trademarks LEE COOPER all over the world, in particular in the Respondent’s country, and that these trademarks have been registered years before the registration of the disputed domain name. Moreover, the Respondent himself points out in his offer to sell the disputed domain name that his domain name attracts the Complainants’ potential customers.
In addition, the Panel finds, that the Respondent has registered the disputed domain name primarily for the purpose of selling the disputed domain name to the Complainants for valuable consideration in excess of out of pocket costs directly related to the domain name which is to be considered as evidence of the registration and use of a domain name in bad faith (paragraph 4(b)(i) of the Policy). This finding is based on the fact that the Respondent has made an unsolicited offer to transfer the disputed domain name to the Complainants for several thousand euros by pointing out that the Complainants should be very interested in getting this domain name since “every day many people access this domain name and they are all your potential customers”. 7. Decision
For the foregoing reasons, in accordance with paragraph 4 (i) of the policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the second Complainant Red Diamond Holdings Sarl.
Stefan Abel
Sole Panelist
Dated: March 30, 2012
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