Complainant is JD SPORTS FASHION (France) S.A.S. of Tourcoing, France, represented by Urquhart-Dykes & Lord, United Kingdom of Great Britain and Northern Ireland.
Respondent is zhang shasha of Zhoukou, Henan, China. 2. The Domain Name and Registrar
The disputed domain name is registered with 1API GmbH (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 14, 2016. On July 14, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 15, 2016, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 28, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 17, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 18, 2016.
The Center appointed Richard Hill as the sole panelist in this matter on August 25, 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
Complainant owns the mark CHAUSPORT and uses to market sports shoes.
Complainant’s registration of its mark dates back to 2010.
The disputed domain name was registered on June 7, 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent was using the disputed domain name to point to a website that offered sports shoes that compete with the products offered by Complainant.
At the time of this decision, the website is inactive. 5. Parties’ Contentions A. Complainant
Complainant states that it is a leading multi-channel retailer of international footwear brands and sports fashion wear in France, founded in 1980. It operates 71 stores, in premium locations, in town centers and shopping centers across France under the CHAUSPORT brand. Its stores stock leading international footwear brands such as Nike, Adidas and Le Coq Sportif along with brands popular in France, such as Redskins. Complainant is the owner of the registered European Union trademark CHAUSPORT. This trademark was filed on September 1, 2009 and registered on February 22, 2010.
According to Complainant, the disputed domain name incorporates Complainant’s mark in its entirety and this is sufficient to establish that it is confusingly similar to Complainant’s mark. Further, the disputed domain name is composed of Complainant’s mark, plus the descriptive term “fr”, which refers to France. Therefore, it is confusingly similar to Complainant’s mark. Complainant cites UDRP precedents to support its position.
Complainant states that it has no business or other relationship with Respondent. Complainant has not consented to the registration of the disputed domain name and its subsequent use by Respondent. Respondent is not commonly known by the disputed domain name.
Complainant alleges (and provides evidence to show) that the disputed domain name was being used in relation to a website advertising and offering for sale sports footwear, predominantly products bearing the well-known trademarks, Adidas, Nike, Asics and New Balance. This is likely to lead to disruption of Complainant’s business under the CHAUSPORT trademark. Consumers will believe that the website at the disputed domain name is in some way connected with, associated with, or related to Complainant’s activities under the CHAUSPORT trademark. Thus Respondent is using the disputed domain name with the intent of misleading consumers and/or harming the reputation enjoyed by Complainant, and this for commercial gain.
Further, says Complainant, the disputed domain name is currently listed with the status “clientHold”. As this is an unusual status, the authorized representative of Complainant contacted the Registrar and was informed that the status is due to a WhoIs-inaccuracy complaint. The inaccuracies within the WhoIs data are a deliberate attempt by Respondent to mask its identity which is evidence of bad faith registration. Moreover, Complainant states that due to the reputation of Complainant’s mark CHAUSPORT, it is hard to believe the disputed domain name was registered and is being used without knowledge of Complainant’s mark. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. Asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by Complainant. See Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009; see also Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109. A. Identical or Confusingly Similar
The disputed domain name incorporates Complainant’s mark in its entirety and adds the geographic descriptor “fr”. This is not sufficient to avoid a finding of confusing similarity in the sense of the Policy. See Uniroyal Engineered Products, Inc. v. Nauga Network Services,WIPO Case No. D2000-0503; F. Hoffmann-La Roche AG v. Relish Entreprises,WIPO Case No. D2007-1629; Inter-IKEA Systems B.V. v. Evezon Co. Ltd.,WIPO Case No. D2000-0437; Dell Computer Corporation v. MTO C.A. and Diabetes Education Long Life,WIPO Case No. D2002-0363.
The Panel finds that Complainant has satisfied its burden of proof for this element of the Policy. B. Rights or Legitimate Interests
Respondent has not been licensed or otherwise authorized to use Complainant’s mark. There is no evidence in the file to indicate that Respondent is commonly known by the disputed domain name. So the Panel concludes that Respondent is not commonly known by the disputed domain name. See World Natural Bodybuilding Federation, Inc. v. Daniel Jones TheDotCafe,WIPO Case No. D2008-0642.
Respondent is using the disputed domain name to resolve to a website that offers products that compete with those of Complainant and that creates consumer confusion. Legitimate interests or bona fide use do not exist when there is deliberate illegitimate use of another’s rights, or when the domain name is used in bad faith to divert users through confusion, see The PNC Financial Services Group, Inc. and PNC Bank, N.A. v. Azra Khan,WIPO Case No. D2002-0701; see also AltaVista Company v. Saeid Yomtobian,WIPO Case No. D2000-0937.
The Panel finds that Complainant has satisfied its burden of proof for this element of the Policy. C. Registered and Used in Bad Faith
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its registration and use of Complainant’s well-known mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent had Complainant’s trademark in mind when registering the disputed domain name.
As noted above, at the time of filing the Complaint, the disputed domain name resolved to a website that offered products that compete with those of Complainant. In the circumstances, this creates a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name. Respondent is using the fame of Complainant’s trademark to improperly increase traffic to its websites for Respondent’s own commercial gain. This constitutes bad faith registration and use in the sense of the Policy. See Speedo Holdings B.V. v. Tyrone L Glenn-Bus,WIPO Case No. D2003-0440; HUGO BOSS Trade Mark Management GmbH & Co. KG and HUGO BOSS AG v. Hu Hui,WIPO Case No. D2015-2144; Utensilerie Associate S.p.A. v. C & M,WIPO Case No. D2003-0159; see also the cases cited above.
The fact that currently the website is inactive does not change the finding of bad faith use and registration.
The Panel finds that Complainant has satisfied its burden of proof for this element of the Policy. 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 Complainant.
Richard Hill
Sole Panelist
Date: August 27, 2016
Full & Egal Universal Law Academy