The Complainant is NEUF of Paris, France, represented by Cabinet Vittoz, France.
The Respondent is Team of China. 2. The Domain Names and Registrar
The disputed domain names , and are registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 5, 2013. On August 5, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On August 5, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
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 August 9, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was August 29, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 30, 2013.
The Center appointed George R. F. Souter as the sole panelist in this matter on September 9, 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 is a high-fashion brand specializing in haut-couture and ready-to wear clothes and fashion accessories under the trademark MAISON MARTIN MARGIELA.
Details of a European Community registration and an International Registration with numerous extensions, including the United States of America (“USA”) and China, of its MAISON MARTIN MARGIELA trademark have been presented to the Panel by the Complainant, as has details of a wide international spread of the Complainant’s Maison Martin Margiela boutiques, and details of numerous newspaper and magazine coverage relating to the Maison Martin Margiela products.
The three disputed domain names were all registered on July 8, 2013. 5. Parties’ Contentions A. Complainant
The Complainant alleges that the three disputed domain names are all confusingly similar to its MAISON MARTIN MARGIELA trademarks, each with the mere addition of a descriptive or non-distinctive element to the MAISON MARTIN MARGIELA trademark.
The Complainant alleges that it is in no way associated or affiliated with the Respondent, that the Respondent has never been granted any license or other rights to use the Complainant’s trademark as part of a domain name or for any other purpose, that the Respondent is not generally known by any of the disputed domain names, and that the Respondent has never made any legitimate noncommercial or fair use of any of the disputed domain names.
The Complainant alleges that the disputed domain names were registered in bad faith, and has provided the Panel with evidence of the use of the disputed domain names hosting websites in which allegedly genuine Maison Martin Margiela products were offered for sale, with a discount well in excess of any discount offered by the Complainant in respect of genuine MAISON MARTIN MARGIELA products, proving use of the disputed domain names in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name of the Respondent be transferred to the Complainant or be cancelled:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
It is well-established in previous UDRP panel decisions that generic Top-Level Domain (“gTLD”) indicators (i.e., “.com”, “.info”, “.net”, “.org”) may be considered irrelevant in assessing confusing similarity between a trademark and a domain name. The Panel agrees with this view and considers the “.com” indicator to be irrelevant in the present case.
It is well-established in previous UDRP panel decisions that the addition of non-distinctive and descriptive elements to an established trademark is insufficient to avoid a finding of confusing similarity between the complainant’s trademark and the disputed domain name (the decision in F. Porsche AG v. Glenn Stefan Karlsson-Springare,WIPO Case No. D2011-1727 and many others). The Panel agrees with this well-established view, and finds that, in the circumstances of the present case, “shoes”, “ukonline” and “vip” are non-distinctive or descriptive elements. Accordingly, the Panel finds that the Complainant has satisfied the test set out in paragraph 4(a)(i) of the Policy in respect of each of the three disputed domain names. B. Rights or Legitimate Interests
It is the predominant view of UDRP panels in previous decisions, with which the present Panel agrees, that an unrebutted prima facie case advanced by the complainant will be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy.
In this case, the Respondent did not take advantage of the opportunity presented in these proceedings to advance any justification of a claim to rights or legitimate interests in the disputed domain names, and the Panel can draw the appropriate conclusion under the Policy. The Panel accepts the Complainant’s contentions (above) under paragraph 4(a)(ii) of the Policy as establishing a prima facie case, and, accordingly, finds that the Respondent has no rights or legitimate interests in any of the three disputed domain names. C. Registered and Used in Bad Faith
The Panel is of the view that, in the case of an established trademark, the finding that the respondent has no rights or legitimate interests in the disputed domain name, may lead, in appropriate circumstances, to a finding that the disputed domain name was registered in bad faith. In the present case, the Panel finds such appropriate circumstances, namely the use of the disputed domain names in the operation of websites offering allegedly genuine Maison Martin Margiela products, even reproducing features of the Complainant’s genuine websites such as use of the same font. Accordingly, the Panel finds that the three disputed domain names were all registered in bad faith.
It is well-established in previous UDRP panel decisions, with which the Panel agrees, that use of a disputed domain name to offer non-genuine products constitutes use in bad faith. The websites operated under the disputed domain names in this case have been used for this purpose as they offered allegedly genuine Maison Martin Margielaproducts for sale, with a suspiciously large discount when compared with the prices offered by the Complainant in respect of its genuine products. Furthermore, the websites under the disputed domain names create an impression of association with the Complainant, while this is not the case. Accordingly, the Panel finds that each of the disputed domain names in this case is being used in bad faith, and, accordingly, finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy in respect of each of the three disputed domain names. 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 names , and be transferred to the Complainant.
George R. F. Souter
Sole Panelist
Date: September 26, 2013
Full & Egal Universal Law Academy