The Complainant is Mrs. Mona Opp of Düsseldorf, Germany, represented by Härting Rechtsanwälte, Germany.
The Respondent is zhengweiping of Xiamen, Fujian, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Ourdomains Limited (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 12, 2016. On January 12, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 13, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 18, 2016 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 January 19, 2016.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on January 22, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 11, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 16, 2016.
The Center appointed Johan Sjöbeck as the sole panelist in this matter on February 26, 2016. 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 has submitted evidence that it is the owner of the registered Community trademark ("CTM") (word) FEMME DE PIMP with registration No. 014048904, registration date September 29, 2015 and priority from the filing date May 11, 2015.
According to the Registrar, the disputed domain name was registered on May 11, 2015. 5. Parties' Contentions A. Complainant
Considering the fact that the space character is not allowed in domain names, the disputed domain name is identical to the Complainant's registered trademark FEMME DE PIMP.
The Respondent registered the disputed domain name only one day after the Complainant applied for the CTM trademark. Since Office for Harmonization in the Internal Market ("OHIM") publishes all new applications on a daily basis on a public website, the Respondent must have noticed that the disputed domain name was available and registered it in order to sell it to the trademark owner.
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has searched worldwide without finding any other trademark registration for "femme de pimp". Since the Respondent has not used the disputed domain name in commerce there is no indication of any unregistered right. The Respondent does not use "femme de pimp" as a company name nor does the Respondent use "femme de pimp" to offer any goods or services. The only thing the Respondent offers for sale is the disputed domain name via an online platform for selling and buying domain names.
On November 30, 2015, the Complainant sent a cease and desist letter to the Respondent. The Respondent did not reply.
The Complainant then offered to purchase the disputed domain name for EUR 500 via the online platform for selling and buying domain names. The Respondent declined the offer and requested EUR 18,000. When the Complainant did not raise the offer, the Respondent cancelled the negotiation. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove each of the following:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant is, according to the submitted evidence, the owner of the registered trademark FEMME DE PIMP. The disputed domain name incorporates the Complainant's trademark in its entirety with the exception of the spaces between the words. However, the elimination of the space character does not affect the similarity analysis, as the space character is not allowed in domain names due to technical restrictions.
Having the above in mind, the Panel concludes that the disputed domain name is identical to the Complainant's trademark FEMME DE PIMP and that the Complainant has proved the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant must show, at least prima facie, that the Respondent has no rights or legitimate interests with respect to the disputed domain name. The Respondent may establish rights or legitimate interests in the disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy any of the following:
(i) that it has used or made 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 prior to any notice of the dispute; or
(ii) that it is commonly known by the disputed domain name, even if it has not acquired any trademark or service mark rights; or
(iii) that it 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 trademark or service mark at issue.
The Complainant has not licensed or otherwise consented to the Respondent's use of the FEMME DE PIMP trademark in connection with the disputed domain name which is identical to the Complainant's trademark. There is no evidence indicating that the Respondent has made preparations to use the disputed domain name in connection with a bona fide offering of goods or services prior to the dispute.
Although given the opportunity, the Respondent has not rebutted the Complainant's prima facie case. It has not submitted any evidence indicating that the Respondent is the owner of any trademark rights or that the Respondent is commonly known by the disputed domain name . Furthermore, there is no evidence in the case indicating that 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 trademark.
The Respondent has failed to invoke any circumstances which could demonstrate, pursuant to paragraph 4(c) of the Policy or otherwise, any rights or legitimate interests in respect of the disputed domain name . Thus, there is no evidence in the case that refutes the Complainant's submissions, and the Panel concludes that the Complainant has also proven the requirement under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Under paragraph 4(b) of the Policy, evidence of bad faith registration and use include:
(i) circumstances indicating that the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of a trademark or to a competitor of the trademark owner, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or
(ii) circumstances indicating that the domain name was registered in order to prevent the owner of a trademark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) circumstances indicating that the domain name was registered primarily for the purpose of disrupting the business of a competitor; or
(iv) circumstances indicating that the domain name has intentionally been used in an attempt to attract, for commercial gain, Internet users to a website or other online location, by creating a likelihood of confusion with a trademark 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 Panel is convinced that at the time of registration of the disputed domain name the Respondent was clearly aware of the Complainant and that the aim of the registration was to take advantage of the confusion between the disputed domain name and the Complainant's potential rights. The submitted evidence in the case indicates that the Complainant sent a cease and desist letter to the Respondent who did not reply. Furthermore, the submitted material demonstrates that the Respondent then requested EUR 18,000 to transfer the disputed domain name to the Complainant.
Thus, the evidence in the case before the Panel indicates that the disputed domain name has been acquired by the Respondent primarily for the purpose of selling the disputed domain name registration to the Complainant for valuable consideration in excess of the documented out-of-pocket costs directly related to the disputed domain name.
There is no evidence in the case file that refutes the Complainant's submissions. The Panel concludes that the Complainant has proven the requirements under paragraph 4(b) of the Policy and that the disputed domain name has been registered and used in bad faith. 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.
Johan Sjöbeck
Sole Panelist
Date: March 9, 2016
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