The Complainant is Monsoon Accessorize Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by SafeNames Ltd., United Kingdom.
The Respondent is ren tang, fu longtian and cheng sanqing of Xiamen City, Fujian Province, China. 2. The Domain Names and Registrars
The disputed domain names and are registered with HiChina Zhicheng Technology Ltd. The disputed domain name is registered with Beijing Innovative Linkage Technology Ltd. dba . 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 19, 2012. On November 20, 2012, the Center transmitted by email to HiChina Zhicheng Technology Ltd. and Beijing Innovative Linkage Technology Ltd. dba (the “Registrars”) a request for registrar verification in connection with the disputed domain names. On November 21, 2012, the Registrars transmitted respectively by email to the Center their verification responses confirming that the Respondent is listed as the registrant and providing the contact details.
On November 22, 2012, the Center sent an email communication to the parties, both in Chinese and English, regarding the language of the proceeding. On the same day, the Complainant confirmed its request which was included in the Complaint that English be the language of the proceeding. The Respondent did not make any submissions with respect to the language of the proceeding.
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 November 29, 2012. In the email of Notification of Complaint, the Center indicated that it had noted the Complainant’s contentions in the Complaint regarding the three listed registrants of record for each of the disputed domain names, along with contentions regarding “common management and control” of the disputed domain names. The Center further indicated that any determination regarding the proper identity of the Respondent(s) and the consolidation issue in this case would be at the sole discretion of the Panel (upon appointment).
In accordance with the Rules, paragraph 5(a), the due date for Response was December 19, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 20, 2012.
The Center appointed Dr. Hong Xue as the sole panelist in this matter on January 3, 2013. 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, incorporated under the laws of England and Wales, is a fashion retailer known for its range of ladies’ fashion apparel under the mark MONSOON that has been registered in many countries.
The Respondent, ren tang, fu longtian and cheng sanqing, registered , and respectively on August 22, September 7 and November 13, 2012. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain names , and , are confusingly similar to the trademark MONSOON, the registration and use of which by the Complainant long precede the registration of the disputed domain names.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain names.
The Complainant contends that the disputed domain names were registered and is being used in bad faith.
The Complainant requests that the 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 the Proceeding
The language of the registration agreements for the disputed domain names specified above, as confirmed by the concerned Registrars, 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 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 websites at the disputed domain names display the contents solely 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 agreements.
Having considered all the circumstances, this Panel determines under the Rules, paragraph 11(a), that English shall be the language of the proceeding. B. Consolidation of Disputes
The disputed domain names were registered under the names ren tang, fu longtian and cheng sanqing respectively. The Complainant, however, requests all disputed domain name be consolidated into one case.
The Panel views that the Complainant’s consolidation request should be handled cautiously. In accordance with the Rules, paragraph 3(c), the complaint may relate to more than one domain name, provided that the domain names are registered by the same domain-name holder. Therefore, if on balance of the evidence it was found by the Panel that the disputed domain names were indeed held by different beneficial owners, a panel would typically not consolidate multiple domain name disputes at the request of a party, as stipulated under the Rules, paragraph 10(e) or 3(c). However, if it is proved that the multiple domain names are controlled by the same domain name holder, the case may be appropriate for consolidation.
A number of decisions made under the Policy have ruled that a panel may consolidate multiple domain names registered under the different names under the Rules, paragraph 3(c) and 10(e), where for example seemingly different registrants are on the evidence found to be alter egos of the same beneficial holder (Backstreet Productions, Inc. v. John Zuccarini, CupcakeParty, Cupcake Real Video, Cupcake-Show and Cupcakes-First Patrol,WIPO Case No. D2001-0654), where respondents have common administrative contact (ISL Marketing AG, and The Federation Internationale de Football Association v. J.Y. Chung, W, W Co., and Worldcup 2002,WIPO Case No. D2000-0034), or where common control or ownership has been found in circumstances indicating that a single person or entity has registered multiple domain names using fictitious names (Yahoo!, Inc v. Somsak Sooksripanich and Others,WIPO Case No. D2000-1461).
In the present case, although there are different registrant names, all the registrants share a common email address of “[…]@” and the disputed domain names and are redirecting Internet users to . The Panel, therefore, concludes that all the registrants are commonly controlled by a single person or entity that is the real domain name holder. The Panel approves the Complainant’s request to consolidate all disputed domain names under the Rules, paragraph 10(e) and 3(c). C. 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 MONSOON through registrations on clothing products and retail business in a number of countries and regions, including China where the Respondent resides.
The disputed domain names are , and . Apart from the generic top-level domain suffix “.com” or “.net”, all three disputed domain names follow the model of “monsoon + generic word(s)”. The generic words added, which are “store”, “uk”, “dresses”, “sale”, “dress”, or “shop”, are directly related to the goods or business on which the Complainant most commonly uses its registered trademark MONSOON.
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 MONSOON in its entirety and other descriptive words related to the Complainant’s business are confusingly similar to the Complainant’s registered trademark MONSOON.
Therefore, the Complaint has proven the first element required by paragraph 4(a) of the Policy. D. 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 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. E. Registered and Used in Bad Faith
The Complainant contended that the Respondent had registered and is using the disputed domain names in bad faith. The Respondent did not respond.
Through visiting the website at one of the disputed domain names, “www.”, the Panel finds that the website prominently and repeatedly shows the Complainant’s mark MONSOON and possibly sell counterfeit Monsoon products. The other two disputed domain names, and , are either inter-directed or redirecting to “www.”.
Since the disputed domain names were registered and are fully controlled by the Respondent, the Respondent is responsible for any use of them. The Panel finds that the current 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’ website or of the products on the website. Therefore, the registration and use of the disputed domain names constitute the evidence of bad faith specified in paragraph 4(b)(iv) of the Policy.
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
Date: January 16, 2013
Full & Egal Universal Law Academy