The Complainant is 13 Rattles, Inc. of New York, New York of United States of America (“United States”), represented by Tucker & Latifi, LLP, United States.
The Respondent is Thomas Zimmermann of Friedrichroda, Germany. 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 November 1, 2017. On November 2, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 3, 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 November 6, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 26, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 27, 2017.
The Center appointed Nayiri Boghossian as the sole panelist in this matter on December 6, 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 a designer and manufacturer of clothing, footwear and accessories, sold under its trademark R13. The Complainant owns United States Trademark, R13, Registration No. 3771061, registered on April 6, 2010; as well as European Union Trade Mark, R13, Registration No. 015410814, registered on August 30, 2016; Turkish Trademark, R13, Registration No. 201346187, registered on May 22, 2013; and Canadian Trademark, R13, Registration No. 1787794, registered on August 9, 2017.
The disputed domain name was registered on April 13, 2017. The disputed domain name resolves to a website which offers for sale clothing items that seem to carry the trademark of the Complainant R13 at discounted prices. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark. The Complainant is the owner of the trademark R13 which it uses in connection with clothing and accessories and sells them online. The Complainant’s goods are sold worldwide and online. The disputed domain name was registered years after the Complainant’s adoption of its trademark. The disputed domain name uses the trademark of the Complainant followed by the word “jeans”, which is a key product of the Complainant. The disputed domain name resolves to a webstore which purports to sell the products of the Complainant at a discounted price but in fact sells clothing items of a cheaper quality.
The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not authorized the use of its trademark by the Respondent and the latter is not commonly known by the disputed domain name. The Respondent cannot have a legitimate business reason for using the disputed domain name.
The disputed domain name has been registered and is being used in bad faith. The Respondent is attempting to create an impression of affiliation with the Complainant and a likelihood of confusion. The Respondent’s website attracts consumers and deters them from looking for the website of the Complainant, which is an act of bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant owns a number of trademark registrations for the trademark R13. The Panel is satisfied that the Complainant has established its ownership of the trademark R13.
The disputed domain name comprises the Complainant’s trademark R13 combined with the term “jeans”, which does not eliminate the confusing similarity with the trademark R13 and may reinforce the impression of being associated with the Complainant who is a manufacturer of clothing and particularly of jeans.
The gTLD “.com” should typically be ignored when assessing confusing similarity as established by prior UDRP decisions.
Consequently, the Panel finds that the disputed domain name is confusingly similar to the trademark of the Complainant and that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant has made a prima facie showing that the Respondent does not have any rights or legitimate interests in the disputed domain name, particularly by asserting that it never authorized the Respondent to use its trademark as part of the disputed domain name.
The Respondent has not provided evidence of circumstances of the types specified in paragraph 4(c) of the Policy, or of any other circumstances, giving rise to rights or legitimate interests in the disputed domain name. The disputed domain name purports to sell R13-branded products. Even if these products are genuine, the Respondent fails to meet the test set out in Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903, as the website to which the disputed domain name resolves does not prominently disclose the relationship between the Respondent and the Complainant. As such, the Panel does not consider the Respondent’s use of the disputed domain name to be bona fide within the meaning of paragraph 4(c)(i) of the Policy.
Consequently, the Panel finds that the Complainant has met the requirement under the Policy of showing that the Respondent does not have any rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The element of bad faith is evidenced by the fact that the trademark R13 as used by the Complainant is used with respect to casual clothing, including jeans. Hence, it must be that the Respondent was fully aware of the Complainant and its trademark and has registered and used the disputed domain name comprising the Complainant’s mark with the aim of diverting internet traffic, by creating the impression of being affiliated with the Complainant.
Such conduct falls squarely within the meaning of paragraph 4(b)(iv) of the Policy, and accordingly, the Panel finds that the Complainant has satisfied 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.
Nayiri Boghossian
Sole Panelist
Date: December 6, 2017
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