The Complainant is CAMPER, S.L. of Inca, Baleares, Spain, represented by Abril Abogados, Spain.
The Respondents are liao xin of Xiamen, Fujian Province, China; Huang Ming Lai of Chengdu, Sichuan Province, China; wang jiu jie of Quanzhou, Fujian Province, China; lin ling of Xiamen, Fujian Province, China; wu zi hong of Quanzhou, Fujian Province, China; skytion gail of Beijing, China; Zhuang Humei of Quanzhou, Fujian Province, China; Diao Guang Gen of Beijing, China; Tang Fang Fang of Hengyang, Hunan Province, China; Xu Jianfeng of Xiamen, Fujian Province, China. 2. The Domain Names and Registrars
The disputed domain names , and
are registered with Guangdong JinWanBang Technology Investment Co., Ltd. The disputed domain names , and are registered with Beijing Innovative Linkage Technology Ltd. dba . The disputed domain names , and are registered with Xin Net Technology Corp. The disputed domain names and are registered with GoD, LLC. The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 12, 2013. On November 13, 2013, the Center transmitted by email to Guangdong JinWanBang Technology Investment Co., Ltd., Beijing Innovative Linkage Technology Ltd. dba , Xin Net Technology Corp., GoD, LLC and PDR Ltd. d/b/a PublicDomainR (“the Registrars”) a request for registrar verification in connection with the disputed domain names. On November 13, 14, 15 and 19, 2014, the Registrars transmitted by email to the Center their verification responses respectively confirming that the Respondents are listed as the registrants and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on November 19, 2013.
On November 19, 2013, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On the same day, the Complainant requested that English be the language of the proceeding. The Respondents did not comment on the language of the proceeding by the specified due date.
The Center verified that the Complaint together with the amended 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 Respondents of the Complaint in both Chinese and English, and the proceedings commenced on November 25, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was December 15, 2013. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on December 16, 2013.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on January 14, 2014. 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 A. Complainant
The Complainant is a company incorporated in Spain and the owner of numerous trade mark registrations worldwide, including in China, for the trade mark CAMPER (the “Trade Mark”), the earliest registration (in Spain) dating from 1973. B. Respondent
The Respondents appear to be individuals based in China. C. The Disputed Domain Names
The disputed domain name was registered on September 25, 2013.
The disputed domain name was registered on October 28, 2013.
The disputed domain name was registered on July 26, 2013.
The disputed domain name was registered on May 27, 2013.
The disputed domain name was registered on May 13, 2013.
The disputed domain name was registered on September 6, 2013.
The disputed domain name was registered on February 25, 2013.
The disputed domain name was registered on March 11, 2013.
The disputed domain name was registered on February 2, 2013.
The disputed domain name was registered on April 6, 2013.
The disputed domain name was registered on March 31, 2013.
The disputed domain name was registered on October 12, 2013. D. The Websites at the Disputed Domain Names
The websites at the disputed domain names (the “Website(s)”) offer (or previously offered) for sale Camper footwear. 5. Parties’ Contentions A. Complainant
The Complainant made the following submissions in the Complaint.
The Trade Mark is a well-known global footwear brand, used continuously by the Complainant since 1973.
The disputed domain names are confusingly similar to the Trade Mark. They contain the Trade Mark in its entirety together with non-distinctive words.
The Respondents have no rights or legitimate interests in the disputed domain names and have not been authorised by the Complainant to use the Trade Mark. The Respondents are not authorised distributors, resellers or clients of the Complainant. The disputed domain names have been used in respect of Websites which offer for sale footwear under the Trade Mark, copy photographs and text from the Complainant’s official website, and feature prominently the Trade Mark and logos of the Complainant. The use of the disputed domain names in this manner clearly misleads consumers into believing that the Respondents’ offer for sale of footwear under the Trade Mark has been endorsed or licensed by the Complainant.
The use of the disputed domain names by the Respondents in this manner amounts to registration and use in bad faith. B. Respondent
The Respondents did not file any Response. 6. Discussion and Findings 6.1 Language of the Proceeding
The language of the registration agreements for the disputed domain names that are registered with the Registrars, Guangdong JinWanBang Technology Investment Co., Ltd., Beijing Innovative Linkage Technology Ltd. dba and Xin Net Technology Corp., is Chinese.
Pursuant to paragraph 11 of the Rules, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreements, the language of the administrative proceeding should be the language of the registration agreements.
Paragraph 11(a) of the Rules does however allow the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding (Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) Electrical Appliance Co. Ltd.,WIPO Case No. D2008-0293; Solvay S.A. v. Hyun-Jun Shin,WIPO Case No. D2006-0593).
The Complainant has requested that English be the language of the proceeding as the Websites are (or were) entirely in the English language, which demonstrates that the Respondents are proficient in the English language.
The Respondents did not file a Response and did not file any submissions with respect to the language of the proceeding.
In exercising its discretion to use a language other than that of the registration agreements, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the proposed language, time and costs (Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004; Finter Bank Zurich v. Shumin Peng,WIPO Case No. D2006-0432).
The Panel finds that sufficient evidence has been adduced by the Complainant to suggest the likely possibility that the Respondents are conversant in the English language (Finter Bank Zurich v. Shumin Peng, supra). The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondents would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English. 6.2 Consolidation of the Respondents
Past UDRP decisions suggest that consolidation of multiple respondents may be appropriate, under paragraphs 3(c) and 10(e) of the Rules, even where differently named domain name registrants are involved, where the particular circumstances of a given case indicate that common control is being exercised over the disputed domain names or the websites to which the domain names resolve (Speedo Holdings B.V. v. Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons,WIPO Case No. D2010-0281).
The arguments relied upon by the Complainant in support of its consolidation request include:
(1) The disputed domain names , , and have been redirected to the Website for ;
(2) The above five disputed domain names share the same admin contact email address ([…]@);
(3) The same admin contact email address is also used for the disputed domain names and ;
(4) The disputed domain names and are owned by the same Respondent, Tang Fang Fang, and the Website for has been redirected to the Website for ;
(5) The Website for has in turn been redirected to the Website for ;
(6) The Website for was previously redirected to the Website for ;
(7) The Website for was hosted using the same IP address as the Website for ;
(8) The disputed domain names and are
owned by the same Respondent, Skytion Gail;
(9) The identical same text used by the Respondent on the Website for was previously used on the Websites for and .
Accordingly, the Complainant submits that the disputed domain names are under the control of the same person and/or are otherwise related to each other.
The Respondents did not file a Response.
In all the circumstances, the Panel concludes sufficient evidence has been adduced to enable the conclusion to be drawn that common control is being exercised over the disputed domain names.
In all the circumstances, the Panel determines, under paragraph 10(e) of the Rules, that consolidation of the Respondents is procedurally efficient and equitable to all the parties, is consistent with the Policy and Rules, and comports with prior relevant UDRP decisions in respect of this issue. 6.3 Substantive Elements of the Policy
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration which predate the date of registration of the disputed domain names by almost 40 years.
UDRP panels have consistently held that domain names are identical or confusingly similar to a trade mark for purposes of the Policy “when the domain name includes the trade mark, or a confusingly similar approximation, regardless of the other terms in the domain name” (see Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662).
The disputed domain names comprise the Trade Mark in its entirety together with non-distinctive words such as “shoes”, “boots”, “outlet”, “online”, “store” etc, which does not, in the Panel’s view, serve to distinguish the disputed domain names from the Trade Mark in any significant way.
The Panel therefore finds that the disputed domain names are confusingly similar to the Trade Mark and holds that the Complaint fulfills the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in disputed domain names:
i) Before any notice to the Respondents of the dispute, the Respondents’ use of, or demonstrable preparations to use, the disputed domain names or names corresponding to the disputed domain names in connection with a bona fide offering of goods or services; or
(ii) The Respondents (as an individual, business, or other organization) has been commonly known by the disputed domain names even if the Respondents have acquired no trade mark or service mark rights; or
(iii) The Respondents are making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondents to register or use the disputed domain names or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondents’ registration of the disputed domain names by almost 40 years. The Panel finds on the record that there is therefore a prima facie case that the Respondents have no rights or legitimate interests in the disputed domain names, and the burden is thus on the Respondents to produce evidence to rebut this presumption (see Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; and Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Respondents have failed to show that they have acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, the evidence suggests the disputed domain names have been used in respect of the Websites, which make unauthorised use of the Trade Mark and other logos of the Complainant, which copy photographs and text from the Complainant’s official Camper website, and which offer for sale footwear under the Trade Mark without authorisation from the Complainant, and without any disclaimer.
There has been no evidence adduced to show that the Respondents have been commonly known by the disputed domain names.
There has been no evidence adduced to show that the Respondents are making a legitimate noncommercial or fair use of the disputed domain names.
The Panel finds that the Respondents have failed to produce any evidence to establish rights or legitimate interests in the disputed domain names. The Panel therefore finds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Pursuant to paragraph 4(b)(iv) of the Policy, the following conduct amounts to registration and use in bad faith on the part of a respondent:
By using the disputed domain names, the Respondents have intentionally attempted to attract, for commercial gain, Internet users to the Respondents’ website 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 the Respondents’ website or location or of a product or service on the Respondents’ website or location.
The Respondents have been using the disputed domain names in respect of the Websites, which have not been authorised by the Complainant, and which feature prominently the Trade Mark and logos of the Complainant, copy photographs and text from the Complainant’s website, and offer for sale footwear under the Trade Mark. This is clear evidence of bad faith. The Panel therefore finds, in all the circumstances, the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain names have been registered and are being used in bad faith. Accordingly the third condition of paragraph 4(a) of the Policy has been fulfilled. 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.
Sebastian M.W. Hughes
Sole Panelist
Date: January 28, 2014
Full & Egal Universal Law Academy