The Complainants are Helen of Troy Limited and OXO International Ltd., both of El Paso, Texas, United States of America (“US”), represented by Rankin, Hill, Porter & Clark LLP, US.
The Respondent is Shanghai V of Shanghai, China. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (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 23, 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 September 27, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was October 17, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 18, 2013.
The Center appointed Fabrizio Bedarida as the sole panelist in this matter on October 24, 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 Complainants in this administrative proceeding are Helen of Troy Limited, a corporation organized under the laws of Barbados, and OXO International Ltd., a limited partnership organized under the laws of Texas, US. The Complainants have proved to be the registered owner of several registrations for the OXO and GOOD GRIPS trademarks, which are used by Complainants together.
According to the Registrar, the Respondent registered the disputed domain name on July 6, 2011, but the disputed domain name was first registered on July 10, 2010. The website at the disputed domain name displays, amongst others, the Complainants’ “Oxo Good Grips” products using the pictures and style of the original website of the Complainant, without any disclaimer, and commercial links to third party websites where products can be bought.
The Complainants’ trademark registrations long predate the registration of the disputed domain name. 5. Parties’ Contentions A. Complainant
The Complainants claim that the disputed domain name is confusingly similar to the Complainants’ OXO and GOOD GRIPS registered trademarks; that the Respondent has no rights or legitimate interests whatsoever with respect to the disputed domain name; and that the Respondent registered and is using the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainants’ contentions. 6. Discussion and Findings
In order for the Complainants to obtain a transfer of the disputed domain name, paragraph 4(a) of the Policy requires that the Complainants must demonstrate to the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have 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
The Complainants have established that they have rights to the OXO and GOOD GRIPS trademarks and have stated that the OXO and GOOD GRIPS trademarks are used together.
The disputed domain name, which contains the Complainants’ OXO and GOOD GRIPS trademarks entirely, appears identical to the registered trademarks of the Complainants and its use, in the combined form in the disputed domain name, is such as to make the disputed domain name confusingly similar to both marks.
It is therefore this Panel’s opinion that the disputed domain name is confusingly similar to the trademarks OXO and GOOD GRIPS (and also the combination OXO GOOD GRIPS) in which the Complainants have rights. B. Rights or Legitimate Interests
This Panel finds that Complainant has made out a prima facie case and, thus, that the Respondent has no connection or affiliation with the Complainants that have not licensed or otherwise authorized the Respondent to use or register any domain name incorporating the Complainants’ trademarks. The Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name, nor any use in connection with a bona fide offering of goods or services for the reasons described in section 6.C below. In addition, the Respondent does not appear to be commonly known by the name “oxogoodgrips” or by a similar name. Finally, the Respondent has not replied to the Complainant’s contentions, proving or at least alleging in any other way any rights or legitimate interests in the disputed domain name. As well, the Respondent has not denied any of the Complainants’ claims.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is of the opinion that the Respondent registered the disputed domain name aware of the Complainants’ trademark registrations and rights in OXO and GOOD GRIPS.
This is shown by the fact that the Respondent uses the disputed domain name for a website displaying, amongst others, the Complainants’ “Oxo Good Grips” products using the pictures and style of the original website of the Complainant, without any disclaimer, and commercial links to third party websites where products can be bought. This is clear evidence that the Respondent is aware of the Complainants’ products and trademarks.
In addition, in all likelihood Respondent is trying to divert traffic intended for the official websites of the Complainants and/or of the Complainants’ authorized resellers. This Panel agrees with the Complainants that this use amounts to use in bad faith of the disputed domain name.
In the absence of contrary evidence, the Panel finds that the Respondent knew of the Complainants’ goods and trademarks and intentionally intended to create an association with the Complainants and their business; that the Respondent, as shown by the contents displayed on its website, must have had actual knowledge of the Complainants’ trademarks at the time of the registration of the disputed domain name; and that the above described use of the disputed domain name, i.e., to divert Internet traffic to the Respondent’s website, falls clearly within the example of bad faith set out in 4(b)(iv) of the Policy: “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.”
Accordingly, the Panel finds on the basis of the evidence presented, that the Respondent has registered and is using the disputed domain name in bad faith.
Therefore, the Complainants have satisfied paragraph 4(a)(iii) of the Policy. 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, Helen of Troy Limited.
Fabrizio Bedarida
Sole Panelist
Date: November 4, 2013
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