The Complainant is Landed Investments (New Zealand) Limited of Auckland, New Zealand, represented by Malloy Goodwin Harford, New Zealand.
The Respondent is Whois Privacy Protection Service by of Tokyo, Japan / Akatukito Irie, kabusikigaishakonpuraiansu of Fukuoka, Japan. 2. The Domain Name and Registrar
The disputed domain name is registered with GMO Internet, Inc. d/b/a Discount-D and O (the "Registrar"). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on November 29, 2017. On November 29, 2017, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the disputed domain name. On November 30, 2017, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 1, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 6, 2017.
On December 1, 2017, the Center sent an email in English and Japanese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on December 4, 2017. The Respondent did not comment on the language of the proceeding by the specified due date.
The Center verified that the Complaint together with the amended 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 in English and Japanese of the Complaint, and the proceedings commenced on December 8, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 28, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 2, 2018.
The Center appointed Angela Fox as the sole panelist in this matter on January 17, 2018. 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.
On February 9, 2018, the Panel issued Administrative Panel Procedural Order No. 1, requesting the provision of further information from the Complainant. The Complainant replied to the above order on February 16, 2018. The Respondent did not reply. 4. Factual Background
The Complainant is a manufacturer of New Zealand wool bedding. It was founded in 1970 and has been trading since then under the Woolrest brand.
The Complainant owns trademark registrations for WOOLREST in jurisdictions around the world, including in New Zealand, Australia, Hong Kong and China. Evidence of these registrations were annexed to the Complaint, including of New Zealand registration no. 134316 for WOOLREST in Class 22 for "woolen articles for bedding, in this class, bed and pillow underlays made wholly or predominantly of wool" filed on September 18, 1980 and registered on July 6, 1984.
The disputed domain name has a registration date of August 18, 2016, but it has a longer history. In its reply to the above-mentioned Panel Order, the Complainant filed WhoIs details showing that the disputed domain name had previously been registered in the name of its licensee BYM International Ltd. ("BYM"), who had been using it to link to a mirror image of the Complainant's "" website. The Complainant states that following the termination of the license in 2016, BYM had agreed to transfer the disputed domain name to the Complainant. Due however to an administrative error by the IT personnel of either the Complainant or BYM, the transfer was not completed and the disputed domain name lapsed some time between March 31, 2016 and August 18, 2016. On the latter date, it was re-registered by the Respondent.
The disputed domain name is in use for a Japanese language website which, when translated, appears to be an informational website relating to "binary options" and "jet options", which appear to be a form of financial services. 5. Parties' Contentions A. Complainant
The Complainant submits that the disputed domain name is identical to its WOOLREST trademark.
It further submits that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not granted the Respondent any license or permission to use the WOOLREST trademark. The Respondent's use of the disputed domain name does not represent a bona fide offering of goods or services, and indeed the Complainant asserts that the Respondent is not trading under the WOOLREST name or trademark at all. The Complainant submits that the Respondent's use is also not a legitimate, noncommercial or fair use. The WOOLREST trademark is highly distinctive and unusual, which, the Complainant says, calls into question the Respondent's motives in registering and using it immediately after the disputed domain name's expiry under ownership by BYM.
Finally, the Complainant contends that the disputed domain name was registered and has been used in bad faith. It notes that prior to the disputed domain name's expiry under ownership by BYM it had been attracting traffic through its use in respect of a website that sold woollen products manufactured by the Complainant's former licensee. The Complainant submits that the Respondent's registration of the disputed domain name following its expiry was intentional and opportunistic. B. Respondent
The Respondent did not reply to the Complainant's contentions and is in default. No exceptional circumstances explaining the default have been put forward. Therefore, in accordance with paragraphs 14(a) and (b) of the Rules, the Panel will decide the Complaint and shall draw such inferences as it considers appropriate from the Respondent's default. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the panel finds that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
All three elements must be present before a complainant can succeed in an administrative proceeding under the Policy.
The Panel has determined pursuant to paragraph 11(a) of the Rules that the language of the proceeding shall be English. Having regard to the Complainant's language request, alongside the fact that the Respondent was notified of the proceeding in English and Japanese, but has not made any comment on the language of the proceeding, nor otherwise responded to the Complaint, the Panel considers it appropriate to accept the Complaint as filed in English and will proceed to a decision accordingly. A. Identical or Confusingly Similar
The Complainant has shown that it has registered trademark rights in WOOLREST.
The disputed domain name consists of the identical word "woolrest" and the non-distinctive domain name suffix ".com".
The Panel finds that the disputed domain name is identical to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Complainant has not authorized the Respondent to use the disputed domain name, and there is no evidence that the Respondent has been commonly known by a name corresponding to it.
The translated print-outs annexed to the Complaint show that the Respondent has been using the disputed domain name in respect of a website relating to what appear to be forms of financial services. The website appears to be purely informational rather than commercial, and nothing on the website suggests that the Respondent is known by or has been operating under a name corresponding to the disputed domain name.
The disputed domain name consists essentially of the distinctive word "woolrest", which the Complainant has protected as a registered trademark and has used for woolen bedding products for over 40 years. The Respondent registered the disputed domain name shortly after its expiry, immediately before which it had been in use to host a website offering the Complainant's licensed goods for sale. The Respondent has offered no explanation for the timing of its registration, nor for its choice of domain name, that would support a case for a legitimate, noncommercial use of the disputed domain name.
The disputed domain name is inherently likely to mislead Internet users who were familiar with the website of the Complainant's former licensee, and the Respondent has not attempted to argue, nor is there any evidence that it could realistically argue, that it has been making a legitimate noncommercial or fair use of the disputed domain name.
The burden of proving absence of a right or legitimate interest in a disputed domain name falls on complainants, but UDRP panels have long recognized that the information needed to prove such a right or interest is normally in the possession of respondents (see, inter alia, Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110). In this case, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and the Respondent has not attempted to refute the Complainant's assertions.
There is nothing in the evidence to suggest that the Respondent has any rights or legitimate interests in the disputed domain name. The Panel finds that it has none. C. Registered and Used in Bad Faith
Under paragraph 4(b)(iv) of the Policy, the following circumstance, if found by the panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.
The Complainant's evidence, uncontested by the Respondent, is that its licensee had been using the disputed domain name prior to its registration by the Respondent, in respect of a website offering the Complainant's licensed goods for sale. The Respondent does not deny knowledge of that use or the traffic that it generated, nor does it seek to explain its registration of the disputed domain name shortly after the previous registration for it had expired. The content on the Respondent's website has the appearance of having been placed there merely for the sake of showing content, rather than reflecting genuine activities. In the Panel's view, all of these factors make it more likely than not that the Respondent registered the disputed domain name in, and most likely prompted by, the knowledge of the expiry of the disputed domain name of the Complainant's former licensee, with the intention to gain in some commercial way by driving Internet traffic to the Respondent's site. The nature of that commercial benefit is not altogether clear, but it seems likely that the Respondent intended thereby to enhance the value of the disputed domain name for a future onward sale.
The Respondent made no effort to refute the Complainant's allegations of registration and use in bad faith. In the light of the findings above, the Panel concludes that the disputed domain name was registered and has been 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 transferred to the Complainant.
Angela Fox
Sole Panelist
Date: March 8, 2018
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