The Complainant is Yoogi’s Closet, Inc. of Seattle, Washington, United States of America, by Focal PLLC, United States of America.
The Respondent is wu da of Fuzhou, Fujian, China. 2. The Domain Name and Registrar
The disputed domain name is registered with HiChina Zhicheng Technology Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 18, 2013. On November 19, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 21, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant name for the disputed domain name which differed from the named Respondent in the Complaint. The Center sent an email communication to the Complainant on November 25, 2013 providing the correct registrant name disclosed by the Registrar, and requesting the Complainant to submit an amendment to the Complaint. The Complainant filed an Amended Complaint on November 26, 2013
On November 25, 2013, the Center transmitted an email to the parties in both English and Chinese concerning the language of the proceeding. On November 26, 2013, the Complainant transmitted an email to the Center requesting that English be the language of the proceeding. The Respondent did not make any submissions regarding the language of the proceeding by the specific 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 Respondent of the Complaint, and the proceeding commenced on December 2, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was December 22, 2013. On December 2, 2013, the Respondent submitted an informal email communication to the Center. The Center notified the parties of the commencement of the panel appointment process on December 23, 2013.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on January 6, 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 the state of Washington in the United States of America (the “US”).
The Complainant is the owner of a registration in the US for the trade mark YOOGI’S CLOSET (the “Trade Mark”) dating from March 31, 2010. B. Respondent
The Respondent is an individual resident in China. C. The Disputed Domain Name
The disputed domain name was registered on October 24, 2013. D. The website at the Disputed Domain Name
The website at the disputed domain name (the “Website”) offers for sale pre-owned luxury goods. 5. Parties’ Contentions A. Complainant
The Complainant made the following submissions in the Complaint.
The Complainant has used the Trade Mark since August 8, 2008 in respect of the online sale of certified pre-owned luxury goods and the online sale on consignment of third party luxury goods.
The disputed domain name is confusingly similar to the Trade Mark. It incorporates the Trade Mark in its entirety.
The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Respondent is not commonly known by the disputed domain name and is not making a bona fide noncommercial use of the disputed domain name.
The disputed domain name has been registered and used in bad faith. It has been used by the Respondent in respect of the Website which is a look-alike version of the Complainant’s website and which copies much of the text and photos from the Complainant’s website. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceeding
The language of the registration agreement for the disputed domain name is Chinese.
Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement.
Paragraph 11(a) of the Rules allows 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 content of the Website is entirely in English, which demonstrates the Respondent is capable of communicating in English.
The Respondent 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 agreement, 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 Respondent is 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 Respondent 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 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 disputed domain name comprises the Trade Mark in its entirety.
The Panel therefore finds that the disputed domain name is 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 the Respondent has rights or legitimate interests in the disputed domain name:
(i) before any notice to the Respondent of the dispute, the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the Respondent has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, 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 Respondent to register or use the disputed domain name or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent’s registration of the disputed domain name by over five years. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent 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 Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the evidence suggests the Website is being used in respect of the Website which is a blatant copy of the Complainant’s website.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Complaint fulfills 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 the Respondent:
By using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Website or other online location, by creating a likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation, or endorsement of the Website or location or of a product or service on the Website or location.
The Respondent has registered and used the disputed domain name in respect of the Website which is a flagrant copy of the Complainant’s website.
Such use of the disputed domain name amounts to 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 name has been registered and is 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 name be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: January 20, 2014
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