The Complainant is Jack Wolfskin Ausrüstung für Draussen GmbH & Co. KGaA of Idstein/Taunus, Germany, represented by Harmsen Utescher, Germany.
The Respondent is Chen Xuezhen/Xuezhen Chen of Shanghai, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2013. On December 2, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 3, 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 December 3, 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 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 in both Chinese and English, and the proceedings commenced on December 10, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was December 30, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 31, 2014.
The Center appointed Douglas Clark as the sole panelist in this matter on January 10, 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
The Complainant is an international outdoor and sporting apparel company.
The Complainant has registered the trademark JACK WOLFSKIN in a number of classes, including Class 25, in numerous countries around the world including International Trademark Registration Nos. 629193 and 643936, with priority back to 1994/1995.
The disputed domain name was registered on September 18, 2013. The disputed domain name resolved to a website which purports to offer the Complainant’s products for sale. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to its registered trademark JACK WOLFSKIN. It is composed of the Complainant’s trademark JACK WOLFSKIN, and the generic terms “2013” and the word “online”.
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 the Proceeding
The language of the Registration Agreement is Chinese. The Complainant requested the language of the proceeding be English on a number of grounds including that the website under the disputed domain name was written in English.
The Respondent did not respond to the Complainant’s language request.
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 that from the fact it does business in English the Respondent should understand the nature of this proceeding. Given the merits of the case and language considerations 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 proceeding 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 JACK WOLFSKIN, the year “2013” and the word “online”.
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 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. The Panel finds none of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent may prove its rights or legitimate interests in a domain name, are present in this case. Furthermore, as the Respondent incorrectly represents that it is “an official Jack Wolfskin Jackets retailer” on its website, the Panel finds no other basis for a finding of rights or legitimate interests on behalf of the Respondent.
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: January 23, 2014
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