The Complainant is Burberry Limited of London, United Kingdom of Great Britain and Northern Ireland, represented by Taylor Wessing LLP, United Kingdom of Great Britain and Northern Ireland (United Kingdom).
The Respondent is Zhangjin of Xiamen, Fujian, China, and Domain Admin of Las Vegas, Nevada, United States of America. 2. The Domain Name and Registrar
The disputed domain name (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 September 19, 2014. On September 19, 2014, the Center transmitted by email to the Registrar PDR Ltd. d/b/a PublicDomainR ("PublicDomainR") a request for registrar verification in connection with the Disputed Domain Name. On September 20, 2014, the Registrar PublicDomainR transmitted by email to the Center its verification response confirming that the Disputed Domain Name was "locked" and that the Respondent "Domain Admin" was listed as the registrant and providing the contact details.
On September 26, 2014, the Center noticed that the registrant details for the Disputed Domain Name had changed and therefore, on the same day, the Center sent an email communication to the Registrar PublicDomainR requesting the Registrar to restore the registrant details as previously confirmed and to confirm again that the Disputed Domain Name will remain locked during the proceedings. On September 27, 2014, the Registrar PublicDomainR confirmed with the Center that due to unexplained technical reasons, the Disputed Domain Name had been transferred to another registrar and it was not able to restore the previous registrant details.
On September 26, 2014, the Center transmitted by email to the Registrar HiChina Zhicheng Technology Ltd. a request for registrar verification in connection with the Disputed Domain Name. On September 28, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent "Zhangjin" is listed as the registrant and providing the contact details. The Center sent an email communication to the Complainant on October 8, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on October 21, 2014. On October 8, 2014, the Center transmitted an email to the parties in both Chinese and English regarding the language of the proceeding. On October 10, 2014, 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 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 proceedings commenced on October 22, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 11, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 12, 2014.
The Center appointed Kar Liang Soh as the sole panelist in this matter on November 21, 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 a luxury fashion house headquartered in London and has been using the trademark BURBERRY on their products for over 150 years. The Complainant has a distribution network of almost 500 stores and concessions in 32 countries, and an online portal for its products under the domain name . The Complainant's holding company, Burberry plc, is listed on the London Stock Exchange and is a constituent of the FTSE 100.
The Complainant owns trademark registration number 3056686 for BLUE LABEL CRESTBRIDGE in the United Kingdom which claims priority from the trademark application number 302955646 of Hong Kong, China. The Complainant has also applied to register the same trademark in Japan (trademark application no 2014‑027661) and Singapore (trademark application number T1405346G). The trademark applications in Hong Kong, China and Singapore were filed on April 8, 2014. The trademark application in Japan was filed on April 9, 2014.
The Respondent appears to be an individual. The information regarding the Respondent in the proceeding is limited to the WhoIs information of the Disputed Domain Name. The lack of information is not helped by the failure of the Respondent to file a Response.
The Disputed Domain Name was registered on April 11, 2014. On or before the Complaint, the Disputed Domain Name resolved to a holding webpage which provided links to web destinations for purported commercial purposes.
On May 20, 2014, the Complainant received an email in response to an enquiry to purchase the Disputed Domain Name the content of which is as follows:
"Hello
We will consider that option if the offer reaches the $50K USD range.
Regards;
Wayne" 5. Parties' Contentions A. Complainant
The Complainant contends that:
1) The Disputed Domain Name is identical or confusingly similar to the Complainant's trademark BLUE LABEL CRESTBRIDGE which is registered in the United Kingdom. The dominant and distinctive element of the Disputed Domain Name is the trademark BLUE LABEL CRESTBRIDGE;
2) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. There is no evidence that the Respondent has used or has made preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services. The Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name; and
3) The Disputed Domain Name was registered and is being used in bad faith. The Respondent registered the Disputed Domain Name primarily for the purpose of selling, renting or otherwise transferring it to the Complainant or its competitor for valuable consideration in excess of his documented out-of-pocket costs. The Disputed Domain Name was registered a matter of days after the Complainant's applications to register the trademark in Hong Kong, China, Singapore and Japan. The Respondent must have been aware of the trademark applications. The links on the holding page resolved from the Disputed Domain Name, in the absence of any contemplated legitimate activity, must be to realize a profitable sale to the Complainant or its competitor. The Respondent offered to sell the Disputed Domain Name in excess of the Respondent's out-of-pocket expenses, indicating that the Disputed Domain Name was registered for the purpose of selling it to the Complainant or its competitor. The Respondent's purpose in registering the Disputed Domain Name was to unfairly disrupt the Complainant's business. The Respondent is intentionally attempting to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of its website. The Respondent did not indicate any dissociation with the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
The Complainant is required to persuade the Panel that all three limbs of paragraph 4(a) of the Policy are established on the evidence in order to succeed in this proceeding. A. Identical or Confusingly Similar
The first limb of paragraph 4(a) of the Policy dictates that the Disputed Domain Name must be identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant's United Kingdom trademark registration establishes the Complainant's rights in the trademark BLUE LABEL CRESTBRIDGE. The Panel notes that the Disputed Domain Name incorporates the trademark BLUE LABEL CRESTBRIDGE in its entirety and is accordingly identical thereto. In the circumstances, the Panel holds that the first limb of paragraph 4(a) of the Policy is made out on the facts. B. Rights or Legitimate Interests
The second limb of paragraph 4(a) of the Policy requires that the Respondent does not have rights or legitimate interests in respect of the Disputed Domain Name. The Respondent is in all likelihood an individual and the Panel accepts that there is no evidence in the proceeding to suggest that the Respondent is commonly known by the name "Blue Label Crestbridge". There is also no evidence that the Respondent has used or has made preparations to use the Disputed Domain Name in any capacity, whether in the bona fide offering of goods or services, or for any noncommercial or fair use purpose. Although the Complainant did not expressly allege that the Respondent was not known to the Complainant prior to the Complaint and was not authorized by the Complainant to use the trademark BLUE LABEL CRESTBRIDGE, it is implicit in the evidence before the Panel that this must be the case. The Panel accordingly makes a finding that the Complainant has demonstrated a prima facie case that the Respondent does not have any right or legitimate interest in the Disputed Domain Name. As such, given the lack of any response or rebuttal in this case (and noting in contrast, the Respondent's response to an inquiry to sell the Disputed Domain Name), the second limb of paragraph 4(a) of the Policy is also established. C. Registered and Used in Bad Faith
Under the third limb of paragraph 4(a) of the Policy, the Complainant must show that the Disputed Domain Name was registered and is being used in bad faith. The evidence submitted in the proceeding has addressed the first two limbs of paragraph 4(a) of the Policy adequately, but the same cannot be said about the third limb.
Based on the evidence submitted, the Complainant's BURBERRY trademark is likely well-known. However, the trademark BURBERRY is not the subject of this proceeding. The fact that the Disputed Domain Name was registered barely days after the Complainant's trademark applications were filed is readily apparent. It is not known in this proceeding whether the trademark BLUE LABEL CRESTBRIDGE is being used by the Complainant. The Panel would have appreciated some evidence that could throw some light on when and where the Complainant started using the trademark BLUE LABEL CRESTBRIDGE, the length and extent of such use, the likely knowledge of the Respondent regarding the existence of the trademark BLUE LABEL CRESTBRIDGE, or even any propensity of the Respondent to register trademarks of others as domain names. Unfortunately, the Panel is limited to considering the evidence as submitted. Be that as it may, although there is no direct evidence on whether the Respondent had actual knowledge of the trademark BLUE LABEL CRESTBRIDGE at the time of registering the Disputed Domain Name, the timing of the registration raises very strong suspicions that such knowledge exists. In addition, the Panel is of the view that the constituent words "BLUE LABEL" and "CRESTBRIDGE" in the trademark BLUE LABEL CRESTBRIDGE are such that a reasonable person would consider them to be non-generic in nature. The Panel is unable to conceive of how the Respondent could have coincidentally and independently coined the same combination within days of the Complainant's trademark applications. The Respondent's lack of response leads the Panel to draw an adverse inference that the Respondent does not refute the Complainant's allegation that the Respondent must have been aware of the Complainant's trademark and trademark applications when registering the Disputed Domain Name.
The Complainant contended that the Respondent registered the Disputed Domain Name primarily for the purpose of selling, renting or otherwise transferring it to the Complainant or its competitor for valuable consideration in excess of his documented out-of-pocket costs (i.e., paragraph 4(b)(i) of the Policy). To this end, the Complainant exhibited an email dated May 20, 2014 in which the Respondent suggested an offer of about USD 50,000 in response to an enquiry to purchase. The Panel does not doubt that such a tidy sum is non-commensurate with the out-of-pocket expenses of registering a domain name. In the face of a serious allegation of this nature, it is surprising that the Respondent had chosen to remain silent. In the circumstances, it is fair to infer that the Respondent's likely state of mind at the time of registering the Disputed Domain Name was tainted with the requisite knowledge and motivation to register the Disputed Domain Name for the primary purpose of extracting a windfall from the Complainant.
Further, the Panel notes the change in the registrar and registrant information subsequent to the filing of the Complaint which suggests an evasiveness to the present proceeding.
Therefore, taking all circumstances into account, the Panel holds that the third limb of paragraph 4(a) of the Policy is also established. 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.
Kar Liang Soh
Sole Panelist
Date: January 8, 2015
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