The Complainant is “Dr. Martens” International Trading GmbH of Gräfelfing, Germany, “Dr. Maertens” Marketing GmbH of Seeshaupt, Germany, represented by Beetz & Partner, Germany.
The Respondent is TianZhongSheng of Xinyang, Henan, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 20, 2013. On September 23, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 25, 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. On September 25, 2013, the Center transmitted an email to the parties in both Chinese and English language regarding the language of the proceeding. On September 27, 2013, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding 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 October 1, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was October 21, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 22, 2013.
The Center appointed Douglas Clark as the sole panelist in this matter on November 7, 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 an international footwear and clothing company.
The Complainant has registered the trademark DR. MARTENS in Class 25 in numerous countries around the world including an International Trademark Registration No. 575311, designating China which was registered in 1991.
The disputed domain name was registered on May 20, 2013. The disputed domain name resolves to a website which offers products of several brands for sale, including those of the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to its registered trademark DR. MARTENS. It is composed of the Complainant’s trademark DR. MARTENS and the letters “yg”. The Complainant states that “yg” is a descriptive abbreviation but does not state what it is an abbreviation of.
The Complainant further contends that the Respondent has no rights or legitimate interests in the disputed domain name as it has not made any bona fide use of the disputed domain name. The Complainant contends that the Respondent has no commercial relationship with the Complainant and it is not a licensee.
The Complainant contends that the disputed domain name was registered and is being used in bad faith with the intention of diverting Internet users to its website where a number of different brands of shoes, including those of the Complainant, are being offered. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Language of Proceedings
The language of the Registration Agreement is Chinese. The Complainant requested the language of the proceedings be English on a number of grounds including that the website under the disputed domain name provided links to websites that were written in English. The Complainant also argued that the Registrar as an ICAAN registrar was familiar with English.
The Respondent did not respond to the Complainant’s language request.
The Respondent appears to do business in Taiwan. The website under the disputed domain name is written in traditional Chinese. The website offers numerous international brands for sale, including Converse, Crocs, Nike and Adidas. When the website is accessed an online operator appears with a question in Chinese and English “May I help you.”
The Respondent was invited to submit its language request regarding the language of the proceeding by the Center in English and Chinese. It did not submit any request. The Panel finds the Respondent should understand the nature of these proceedings. Given the merits of the case being strongly in favour of the Complainant, the Panel does not consider it appropriate to require the Complainant to translate the Complaint into Chinese.
In the circumstances of this case, the Panel decides that the language of the proceedings shall be English pursuant to paragraph 11 of the Rules. The Panel accepts the Complaint as filed in English and the Panel will render its decision in English. Substantive Decision
This is a relatively straightforward case which, in the Panel’s opinion, does not require detailed discussion. A. Identical or Confusingly Similar
The disputed domain name is composed of the Complainant’s registered trademark DR. MARTENS and the letters “yg”. The letters “yg” appear to have no meaning.
According to previous UDRP decisions, the “addition of merely generic, descriptive, or geographical wording to a trademark in a domain name would normally be insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP” (see paragraph 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)).
The letters “yg” are not strictly generic, descriptive or geographical wording, however, as apparently meaningless additions to a trademark, the same principle as that set out above should be applied.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark.
The first element of the UDRP is made out. B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert 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 in a domain name, are present in this case.
Since the Complainant has made out a prima facie case that the Respondent has not rebutted, the Panel finds that the second element of the UDRP is made out. C. Registered and Used in Bad Faith
The Panel also finds that the disputed domain name was registered in bad faith and is being used in bad faith.
This case falls with 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.”
The third element of the UDRP is made out. 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
Date: November 21, 2013
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