The Complainant is GINC UK Limited of Lightwater, United Kingdom of Great Britain and Northern Ireland ("UK"), represented by Jensen & Son, UK.
The Respondent is Song Qiuxiang of Luohe, Henan, China. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 11, 2017. On August 14, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 15, 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.
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 August 18, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 7, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 8, 2017.
The Center appointed Nathalie Dreyfus as the sole panelist in this matter on September 19, 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
The Complainant is GINC UK Limited, one of the leading swimwear companies in numerous countries across the world, including the UK and Australia. The Complainant commercializes swimwear, goggles and swimming equipment under its trademark ZOGGS, for which details of registration have been provided to the Panel. The Respondent is an individual person domiciled in China. The disputed domain name was registered by the Respondent on October 15, 2016.
The disputed domain name directs to a website that reproduces the trademark and logo of the Complainant, as well as photographs of the Complainant's goods offered for sale. 5. Parties' Contentions A. Complainant
First of all, the Complainant contends that the disputed domain name is confusingly similar to its trademark ZOGGS as it identically reproduces the Complainant's trademark followed by the word "swimwear", which corresponds to the Complainant's most important products.
The Complainant then puts forth that the Respondent has no right or legitimate interest in the disputed domain name as it is not authorized to use or sell the Complainant's products and is not a customer or a licensee of the Complainant or its distributors.
Finally, the Complainant argues that the disputed domain name was registered and is being used in bad faith as it is used for a fake website imitating the Complainant's official website, and through which the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent's website, by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website. The Complainant also indicates that the Respondent was previously found as having registered and used domain names in bad faith, as decided by several UDRP panelists in previous WIPO cases (Filippa K Aktiebolag v. Song Qiuxiang,WIPO Case No. D2017-0578; Calzados Hergar, S.A. v. Song Qiuxiang,WIPO Case No. D2017-0245, and Björn Borg Brands AB v. Song Qiuxiang,WIPO Case No. D2017-0236). B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:
i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel, which finds that the disputed domain name incorporates the Complainant's trademark ZOGGS in its entirety, concurs with the opinion of prior UDRP panels which have held that the fact that a domain name wholly incorporates a complainant's registered trademark may be sufficient to establish confusing similarity for the purposes of the Policy (See e.g., Oki Data Americas Inc. v. ASD Inc.,WIPO Case No. D2001-0903).
Besides, the mere addition of descriptive or non-distinctive elements to a trademark in which the Complainant has rights is insufficient to avoid a finding of confusing similarity. In the present case, the Complainant's trademark is associated with the generic and descriptive term "swimwear", which does not prevent any confusing similarity.
For the purposes of the present comparison, the Panel agrees with the well-established view under the UDRP that generic Top-Level Domain ("gTLD") extensions may typically be considered irrelevant in assessing confusing similarity between a trademark and a disputed domain name (See e.g., Boehringer Ingelheim International GMBH v. Ralf Zinc,WIPO Case No. D2016-1236) and considers the gTLD extension ".com" to be irrelevant in the present case.
The Panel consequently finds that the disputed domain name is confusingly similar to the Complainant's trademark and that the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The burden of proof is on the Complainant to demonstrate a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. Once the Complainant has made out a prima facie case, the Respondent may then, inter alia, demonstrate rights or legitimate interests in the disputed domain name by proving that one of the following circumstances of paragraph 4(c) of the Policy is applicable to the case:
(i) before any notice of the dispute, the Respondent used, or made demonstrable preparations to use the domain name or a name corresponding to the 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 domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) (iii) the Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Given the absence of reply to the Complaint, and based on the evidence submitted in the case file, the Panel accepts the Complainant's claim that the Respondent was never granted any rights to use the ZOGGS trademark in relation to the disputed domain and that the Respondent is not a customer or licensee of the Complainant or its distributors. The Panel consequently deems that the Complainant has established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name.
Furthermore, as the website at the disputed domain name reproduces the look and feel of the Complainant's official website, the Complainant's trademark and logo as well as photographs of the Complainant's products offered for sale, and since said website does not display any element as to clarify or disclaim the relationship between the Respondent and the Complainant, the Panel finds no other basis upon which to find any rights or legitimate interests relating to the Respondent in the disputed domain name (See e.g., Spigen Korea Co. Ltd., Spigen Inc. v. Domain Admin, Whois Privacy Corp.,WIPO Case No. D2016-0145).
In light of the above, considering that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name while given the opportunity under paragraph 4(c) of the Policy, and that the Panel has not found any other basis upon which to recognize any of the said rights or legitimate interests, the Panel therefore considers that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
As the website at the disputed domain name reproduces the look and feel of the Complainant's official website, the Complainant's trademark and logo as well as photographs of the Complainant's products offered for sale, the Panel finds that the Respondent necessarily must have had the Complainant in mind at the time of registration of the disputed domain name. As a result, the Panel finds that the Respondent could not have unintentionally incorporated the Complainant's trademark in the disputed domain name and, therefore, registered the domain name in bad faith (See e.g., Siemens AG v. Client,WIPO Case No. D2015-2035; Research In Motion Limited v. Privacy Locked LLC/Nat Collicot,WIPO Case No. D2009-0320). Such finding is reinforced by the fact that, as shown by the Complainant, the Respondent was previously found by UDRP panelists to have registered domain names in bad faith. The Panel concludes that the Respondent has engaged in a pattern of registering domain names reproducing third-party trademarks to prevent their respective owner to reflect their trademark in corresponding domain names.
Secondly, the use of the disputed domain name for a website imitating the Complainant's official website by reproducing the look and feel of said website, the Complainant's trademark and logo as well as photographs of the Complainant's products offered for sale constitutes use in bad faith (See e.g., Audi AG v. John Smith,WIPO Case No. D2016-0184). As the word "swimwear" directly refers to the Complainant's activity, the Panel finds that its presence enhances the likelihood of confusion with the Complainant's trademark (Arena Distribution SA v. LinYuanQan,WIPO Case No. D2015-1806). As a matter of fact, the Panel finds that the Respondent has tried to impersonate the Complainant in order to allegedly offer the Complainant's products for sale and, ultimately, to intentionally attempt to attract, for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's ZOGGS trademark and its associated products, leading Internet users to believe that the website is in some way associated with the Complainant.
In light of the above, the Panel considers that the Complainant has satisfied the requirements of paragraph 4(a)(iii) 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 the Complainant.
Nathalie Dreyfus
Sole Panelist
Date: September 26, 2017
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