The Complainant is Baum und Pferdgarten A/S of Copenhagen, Denmark, represented by Patrade A/S, Denmark.
The Respondent is Liu Xuemei of Zhoukou, China. 2. The Domain Name and Registrar
At the filing of the Complaint, the disputed domain name was registered with PDR Ltd. d/b/a PublicDomainR, and it is currently registered with Xiamen ChinaSource Internet Service Co., Ltd. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on August 18, 2017. On August 18, 2017, the Center transmitted by email to PDR Ltd. d/b/a PublicDomainR a request for registrar verification in connection with the disputed domain name. On August 19, 2017, PDR Ltd. d/b/a PublicDomainR transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Subsequently, on August 24, 2017, PDR Ltd. d/b/a PublicDomainR indicated to the Center that the disputed domain name was transferred to the Registrar. At request of the Center, the Registrar restored the registrant details on August 31, 2017 and transmitted 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 September 8, 2017. In accordance with the Rules, paragraph 5, the due date for Response was September 28, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 29, 2017.
The Center appointed Luca Barbero as the sole panelist in this matter on October 4, 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, Baum und Pferdgarten A/S, is the owner of the International Trademark Registration No. 902365 for BAUM UND PFERDGARTEN (word mark), registered on May 22, 2006, in classes 18, 25 and 35, and designating the following countries: Australia, Switzerland, China, European Union, Iceland, Japan, Republic of Korea, Norway, Russian Federation and United States of America.
The disputed domain name was registered with PDR Ltd. d/b/a PublicDomainR on August 25, 2016, and is pointed to a website where purported BAUM UND PFERDGARTEN clothes are advertised and offered for sale. 5. Parties' Contentions A. Complainant
The Complainant relies on its International Trademark registration for BAUM UND PFERDGARTEN to demonstrate the first requirement.
It also states that there is no evidence that the Respondent has any legitimate interest in the disputed domain name, as the disputed domain name resolves to a website selling counterfeit goods under the trademark BAUM UND PFERDGARTEN.
The Complainant further submits that it was informed of the counterfeit nature of the products sold on the Respondent's website by its customers, and concludes that the Respondent is using the disputed domain name in bad faith, in an attempt to attract Internet users to its website for commercial gain, by creating a likelihood of confusion with the Complainant's trademark as to the source and endorsement of its website. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
According to paragraph 15(a) of the Rules: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable". Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of 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 Panel finds that the Complainant has established rights in the trademark BAUM UND PFERDGARTEN based on the International Trademark Registration No. 902365 cited above. According to the records of registration, the trademark is protected for all of the products and services subject of the registration in Australia, European Union, Iceland, Japan, Norway, Russian Federation and Switzerland, and for some of them in China, Republic of Korea and United States of America.
The disputed domain name incorporates the trademark BAUM UND PFERDGARTEN in its entirety with the addition of the generic term "salg" ("sale" in Danish) and of the generic Top-Level Domain ".com", which the Panel finds both insufficient to exclude the likelihood of confusing similarity.
As found in a number of prior cases decided under the Policy, where a trademark is recognizable within a domain name, the addition of generic or descriptive terms does not prevent a finding of confusing similarity under the first element. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0").
Therefore, the Panel finds that the Complainant has proven that the disputed domain name is confusingly similar to a trademark in which the Complainant has established rights according to paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant is required to make a prima facie case that the Respondent lacks rights or legitimate interests and, once such prima facie case is made, the burden of production shifts to the Respondent to submit appropriate allegations or evidence demonstrating rights or legitimate interests in the disputed domain name. If the Respondent fails to demonstrate rights or legitimate interests in the disputed domain name in accordance with paragraph 4(c) of the Policy or on any other basis, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. See Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110; Banco Itau S.A. v. Laercio Teixeira,WIPO Case No. D2007-0912; Wal-Mart Stores, Inc. v. WalMart Careers, Inc.,WIPO Case No. D2012-0285.
The Panel finds that the Complainant has made a prima facie case and that the Respondent, by not having submitted a Response, has failed to demonstrate rights or legitimate interests in the disputed domain name in accordance with paragraph 4(c) of the Policy for the following reasons.
According to the records, there is no evidence of an authorization granted by the Complainant to the Respondent to use the trademark BAUM UND PFERDGARTEN and/or the registration and use of the disputed domain name.
Moreover, there is no element from which the Panel could infer a Respondent's right over the disputed domain name, or that the Respondent, whose name disclosed in the WhoIs records of the disputed domain name is Liu Xuemei, might be commonly known by the disputed domain name.
Furthermore, the Panel finds that the Respondent's offer of purported BAUM UND PFERDGARTEN products on the website to which the disputed domain name resolves does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Indeed, no information about the entity that operates the Respondent's website is provided, except for an email address, and no disclaimer is available, either on the home page and in the internal pages of the website.
Therefore, the Panel finds that the Complainant has proven the requirement prescribed by paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
In view of the circumstances of the case, the Panel finds that the Respondent's registration of the disputed domain name, confusingly similar to the Complainant's prior trademark BAUM UND PFERDGARTEN, does not amount to a mere coincidence and that, in all likelihood, the Respondent registered the disputed domain name with the Complainant's trademark in mind.
Indeed, the use of the disputed domain name made by the Respondent to advertise and offer for sale purported BAUM UND PFERDGARTEN products on the website to which the disputed domain name resolves, clearly shows that the Respondent intended to target the Complainant's trademark.
The Panel also finds that the pointing of the disputed domain name to a website promoting alleged BAUM UND PFERDGARTEN products without providing any disclaimer as to the lack of affiliation with the Complainant, demonstrates that the Respondent intentionally attempted to attract Internet users to its website for commercial gain, by causing a likelihood of confusion as to the source, affiliation, sponsorship or endorsement of the website and of the products promoted therein, according to paragraph 4(b)(iv) of the Policy.
For the foregoing reasons, the Panel finds that the disputed domain name was registered and is 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 name be cancelled.
Luca Barbero
Sole Panelist
Date: October 18, 2017
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