The Complainant is J. Choo Limited of London, United Kingdom of Great Britain and Northern Ireland (“United Kingdom” or “UK”), represented by A. A. Thornton & Co., United Kingdom.
The Respondent is Wang Lai of Xiangtan, Hunan, China. 2. The Domain Names and Registrar
The disputed domain names , , , and are registered with B, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 1, 2017. On February 1, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On February 6, 2017, 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 February 13, 2017, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On February 15, 2017, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 the Respondent of the Complaint, and the proceedings commenced on February 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 12, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 13, 2017.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on March 22, 2017. 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 United Kingdom. The Complainant’s JIMMY CHOO trade mark (the “Trade Mark”) is a high fashion brand used around the world in respect of the Complainant’s footwear for women and men, handbags, small leather goods, scarves and belts. The Complainant is the owner of numerous registrations worldwide for the Trade Mark, including European Union Trade Mark Registration No. 001662543 with a registration date of September 16, 2002; and International Trade Mark Registration No. 781760 with a registration date of May 27, 2002. B. Respondent
The Respondent is apparently an individual resident in China. C. The Disputed Domain Names
The disputed domain names were all registered on the same date, March 3, 2016. D. The Websites at the Disputed Domain Names
The disputed domain names have been resolved to websites which offer for sale heavily discounted Jimmy Choo and Christian Louboutin luxury footwear, and which copy the Complainant’s corporate livery and logos. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain names are identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain names, and the disputed domain names have been registered and are being used in bad faith. 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 Agreements for the disputed domain names 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 Agreements.
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 order 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.
The Complainant has requested that English be the language of the proceeding for the following reasons:
(1) The Websites are English language websites;
(2) There are options to translate the Websites into other languages, but not into Chinese;
(3) The goods for sale on the Websites are offered in US Dollars when the language of the Websites is set to English, which indicates that the websites are directed primarily at consumers in the United States of America (“US”);
(4) Shoe sizes of the products offered for sale on the Websites are given in US and UK sizes as well as in European sizes, which indicates that the websites are targeting consumers in the US and the UK as well as in Europe, where English is widely understood;
(5) All of the above indicates that the Respondent has a good understanding of the English language.
The Respondent, having received the Center’s communication regarding the language of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding. Furthermore, having received notice of the proceeding in both Chinese and English, the Respondent chose not to file a response.
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.
The Panel finds that evidence has been adduced by the Complainant to suggest the likely possibility that the Respondent is conversant and/or proficient in the English language. In view of the above, it is not foreseeable that the Respondent will be prejudiced, should English be adopted as the language of the proceeding.
In all the circumstances, 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 Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain names comprise the Trade Mark in its entirety, together with the dictionary words “cheap”, “heels”, “outlet”, “shoes” and/or “sales” which are either commonly used generic marketing words or expressions, or words which are descriptive of the Complainant’s goods marketed and sold under the Trade Mark. The Panel finds the addition of such generic and descriptive wording does not serve to distinguish the disputed domain names from the Trade Mark in any significant way.
The Panel therefore finds that the disputed domain names are confusingly similar to the Trade Mark. 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 a respondent has rights or legitimate interests in a 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.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain names or to use the Trade Mark. 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 names, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he or she has acquired any trade mark rights in respect of the disputed domain names or that the disputed domain names have been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain names have been used in respect of the Websites, which offer for sale heavily discounted Jimmy Choo shoes under the Trade Mark, feature the corporate livery and logos of the Complainant without authorisation, and, furthermore, offer for sale footwear of a competitor of the Complainant, Christian Louboutin.
The Complainant contends it is likely the shoes offered for sale on the Websites under the Trade Mark are counterfeits, as the Respondent has not been authorised by the Complainant to sell JIMMY CHOO shoes, and the shoes offered for sale on the Websites are significantly discounted.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain names.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain names.
For the foregoing reasons, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain names. C. Registered and Used in Bad Faith
In light of the manner of use by the Respondent of the Websites described above, the Panel finds the requisite element of bad faith has been satisfied under paragraph 4(b)(iv) of the Policy. Even if the shoes offered for sale on the Websites are not counterfeits, the Panel has no hesitation in concluding, in all the circumstances, that bad faith has been made out.
For the foregoing reasons, the Panel finds that the disputed domain names have been registered and are being 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 names , , , and be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: April 5, 2016
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