The Complainant is CSP International Fashion Group S.p.A. of Ceresara (Mantova), Italy, represented by Rödl & Partner, Italy.
The Respondent is Domain Administrator, NameFind LLC of Cambridge, Massachusetts, United States of America (“United States”), represented by Gerald M. Levine, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 26, 2018. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 29, 2018, 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 January 31, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 20, 2018. Upon request by the Respondent, the Center granted an extension of Response due date until February 24, 2018. The Response was filed with the Center on February 16, 2018.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on March 2, 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. 4. Factual Background
The Complainant, founded in 1973, trades in stockings, underwear, beachwear, and other clothing and fashion items. The scale of the Complainant, in 2016, included sales of EUR 126.2 million, the employment of 800 people in Italy and in France, and distribution of its products to 40 countries. The Complainant owns or trades in brands including Sanpellegrino, Oroblù, Le Bourget, Lepel, Liberti, Well, Cagi, Perofil, and Luna di Seta.
The Complainant does not have a registered trademark for MYBOUTIQUE but claims rights in the unregistered trademark dating from 2011. The Complainant registered the domain name on February 4, 2011.
The Respondent is in the business of reselling domain names. The disputed domain name was first registered on August 9, 2000 and was acquired by the Respondent from another registrant on April 1, 2015. The disputed domain name resolves to a parking page with pay-per-click links and is marked as being for sale. The page indicates that the disputed domain name has been offered for sale (recently for $US 9,999). 5. Parties’ Contentions A. Complainant
The Complainant’s contentions include the following:
The Complainant contends that the disputed domain name is identical in text and sound to the unregistered trademark in which the Complainant claims rights, and to the Complainant’s domain name .
The Complainant says it has been the owner of the unregistered trademark MYBOUTIQUE since 2011. The domain name was registered by the Complainant on February 4, 2011 and screen capture evidence is produced of its use for the Complainant’s business on October 25, 2011. The Complainant submits that it is not required to hold a registered trademark under the Policy and that unregistered/common law rights are sufficient.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name because it is passively held without any use or demonstrable preparations for use for a bona fide offering of goods or services; the Respondent has not been commonly known by the disputed domain name; and there is no legitimate noncommercial or fair use of the disputed domain name. Furthermore the disputed domain name is offered for sale and the exorbitant (in the Complainant’s words) price of USD 9,999 has been asked. The Complainant implies that the offer for sale and the asking price impinge on bad faith and therefore the Respondent cannot have rights or legitimate interests in the disputed domain name.
The Complainant says the disputed domain name was registered and is being used in bad faith. The disputed domain name was registered primarily for the purpose of selling, renting, or otherwise transferring profitably to the Complainant.
The Complainant says because its domain name had become an important asset it recently decided to register the trademark MYBOUTIQUE and the disputed domain name, and only then discovered the latter had been registered.
The Complainant says it has (common law) rights in the unregistered trademark MYBOUTIQUE because it has become a distinctive identifier that consumers associate with the Complainant’s goods or services. It says it has used the unregistered trademark largely and intensively since 2011. A Google search result for “myboutique” produced in evidence features the Complainant’s website “www.” and the Complainant’s products. The Complainant has annexed opinions left by users of the website “”, which it says is dedicated to the certification of companies and their products. A further annex reproduces favourable comments about the Complainant on web logs (“blogs”).
The Complainant cites previous cases under the Policy that it says support the proposition that an unregistered trademark may acquire (common law) rights if it is descriptive and has acquired goodwill and reputation only in a specific field. The Complainant says that the Respondent, by its choice of the disputed domain name, recognised the association of the latter with the Complainant.
The Complainant submits there is no limitation governing the relative dates of registration of the disputed domain name and the bringing of the Complaint.
The Complainant says the disputed domain name was created by the Respondent in 2000 and says it is highly likely that the Respondent knew or should have known that MYBOUTIQUE was the Complainant’s well-known trademark.
The Complainant has cited a number of previous decisions under the Policy, and material from the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (superseded by WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)), that it considers relevant to its position.
The Complainant requests the transfer to itself of the disputed domain name. B. Respondent
The Respondent denies the Complaint. The main points of the Response are summarised in a Declaration under penalty of perjury signed by the Respondent’s Vice-President of Aftermarket Sales on February 12, 2018 (“Respondent’s Declaration”). The Respondent’s contentions include the following:
The Respondent contends that the Complainant has failed to prove that it had rights in its alleged unregistered trademark prior to April 1, 2015, being the date when the Respondent acquired and registered the disputed domain name. The Complainant has failed to demonstrate that the trademark acquired distinctiveness and reputation prior to the registration of the disputed domain name because its evidence is dated later.
The Respondent says it acquired the disputed domain name in 2015 (which was originally registered on August 9, 2000) in a portfolio of domain names that included, according to a list annexed, 67 domain names containing the word “boutique”. It says the disputed domain name comprises a plain generic phrase consisting of two dictionary words. The phrase does not signify any particular merchant, manufacturer, or brand.
The Respondent says the Complainant bases its case on having registered the domain name on February 11, 2011. There is no evidence the Complainant’s brand could have travelled to the United States before the Respondent registered the disputed domain name.
The Respondent refutes that the Complainant’s unregistered trademark had acquired secondary meaning prior to the registration of the disputed domain name, and says the Complainant’s annexed ratings report and customer blogs are dated too late to support any such contention. A strong inference can be drawn that Complainant’s store was not operating until late 2015.
The Respondent questions the Google search result page produced by the Complainant and says it was captured on Google (Italy), not the United States, and also provides only current information.
The Respondent says the establishment of secondary meaning in the Complainant’s unregistered trademark would require proof, and cites previous decisions under the Policy that have canvassed the necessary standard of proof. As to the extent of the Complainant’s sales, the Respondent says the figure of EUR 126.2 million for the year 2016 refers to later than the registration of the disputed domain name and is not specific for the “My Boutique” brand, which is in any case not among the Complainant’s listed family of brands (section 4 above).
The Respondent further contends that it does have rights or legitimate interests in respect of the disputed domain name. The website of the disputed domain name offers pay-per-click links that include fashion and jewellery and indicates that the disputed domain name is for sale. The disputed domain name is a common expression and is not used in a trademark sense. There are many United States Patent and Trademark Office (USPTO) trademark registrations for “boutique” in combination, and one registration for MY BOUTIQUE alone, which is not the Complainant’s.
The Respondent says its business in the reselling of domain names is a legitimate activity provided there is not intentional targeting of another’s trademark. The asking price for a domain name is of no relevance. The Complainant offers no proof that it was targeted by the Respondent and nothing on the Respondent’s website has made any reference to the Complainant.
The Respondent denies that the disputed domain name was registered and is being used in bad faith. Under this heading it repeats some of the arguments above. The Respondent says it could not have known about an Italian fashion outlet whose alleged unregistered trademark was its domain name. The Respondent’s own Google search for “myboutique” found, on the first page, shops in the United States, Australia, the United Kingdom of Great Britain and Northern Ireland, and other locations, but did not find the Complainant. There is no evidence for the Complainant’s claimed advertising campaign.
The Respondent reiterates that it did not know of or target the Complainant and that it holds domain names for their descriptive value. Its business of selling domain names or in deriving pay-per-click revenue is, in the circumstances, unexceptionable. The Respondent reviews the commonly applied criteria of bad faith and says there has been none on its part.
The Respondent asks for a finding of attempted Reverse Domain Name Hijacking (“RDNH”) against the Complainant. The Respondent says an asking price for the disputed domain name was quoted on its behalf to an enquirer who turned out to be acting for the Complainant. Since the price enquiry was on behalf of the Complainant, the quotation in reply was not an offer for sale in the terms of paragraph 4(b)(i) of the Policy. On the facts as they were at the time the Complaint was made, and on the basis of previous decisions under the Policy, the Complainant ought to have known that it could not succeed.
The Respondent has cited a number of previous decisions under the Policy, and material from the WIPO Overview 3.0, that it considers to be relevant to its position. 6. Discussion and Findings
Paragraph 4(a) of the Policy states that the Respondent is required to submit to a mandatory administrative proceeding in the event that the Complainant asserts to the applicable dispute-resolution provider, in compliance with the Rules, that:
(i) [the Respondent’s] 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 domain name; and
(iii) [the Respondent’s] domain name has been registered and is being used in bad faith”.
The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute. A. Identical or Confusingly Similar
In order for confusing similarity between the disputed domain name and the Complainant’s trademark to be proven under paragraph 4(a)(i) of the Policy, the Complainant must first establish that it has rights in the relevant trademark.
The Complainant does not have a registered trademark for “myboutique” but relies on its claim to have common law rights. The establishment of such rights requires more than an assertion of such by the Complainant and requires an assessment of the weight and materiality of the evidence.
On analysis, the expression “myboutique” comprises the word “boutique” and the possessive pronoun “my” that is fashionable in domain names and businesses. As such, and certainly without evidence of fame or reputation, “myboutique” is a descriptive alleged trademark. Before the Complainant can claim unregistered or trademark status in “myboutique”, it must therefore demonstrate that it has acquired secondary meaning. That in turn requires the Complainant to prove that the term “myboutique”, in the context, distinctively identifies primarily the Complainant with the goods or services it supplies. The consensus view of UDRP panels as to the sort of evidence required in order to establish unregistered or common law rights is described in WIPO Overview 3.0 at section 1.3 as including “a range of factors such as (i) the duration and nature of use of the mark, (ii) the amount of sales under the mark, (iii) the nature and extent of advertising using the mark, (iv) the degree of actual public (e.g., consumer, industry, media) recognition, and (v) consumer surveys”.
The alleged trademark appears to have originated as the Complainant’s domain name . The registration of a domain name does not by itself create a trademark. The earliest record produced in evidence is a screen capture by the Wayback Machine (“”) dated October 25, 2011, which shows the existence of the Complainant’s domain name and its corresponding website: the only mention of “myboutique” is in the page title “Myboutique - Shop online di calze, collant, intimo, abbigliamento e costumi Su My... Pagina 1 di 1”. The next Wayback Machine capture is dated July 1, 2012; the only mention of “myboutique” is in the page title “Shop online calze: Vendita on-line intimo donna, calze, collant; - Myboutique Pagina 1 di 2”. The page captured on August 5, 2013 displays brand names and prices, and the one captured on December 10, 2013 also has models and the announcement (translated) “MYBOUTIQUE: Online Sales Tights, Socks, Underwear for Man and Woman, directly from the Manufacturer”. Further captures are dated June 18, 2014, July 20, 2015 and October 28, 2016, the last two being after the registration date of the disputed domain name.
The Complainant’s website “/en/our-history”, captured on October 11, 2017, provides a chronology that includes the line: “2013 - start-up of the online sales of the parent company’s products with the site www. ”.
The Complainant has also produced a description or promotion of its business apparently dated October 15, 2013 from the website “” that reproduces a collage of the Complainant’s brands and a design in various typefaces that reads “myb shopping experience”. This design appears in a Wayback Machine capture of the Complainant’s website dated August 5, 2013.
The design also appears on the “feedaty” opinion website (“”) captured on October 13, 2017, which displays comments or ratings dated only between August and October 2017. A Facebook page, captured on January 23, 2018, is headed MYB MYBOUTIQUE and refers to “MyBoutique” and “@”.
The Panel takes from the foregoing that the Complainant operates an online shop for which it has chosen the domain name “myboutique”, that is necessarily registered under a Top-Level Domain, in this instance the Italian country code “.it”. Thus the status of the name “myboutique” in relation to the Complainant’s business is that products bearing distinctive names such as Sanpellegrino, Oroblù, Le Bourget, Lepel, Liberti, Well, Cagi, Perofil, and Luna di Seta are sold through the domain name . A boutique is a small or specialised shop or service, therefore “myboutique” effectively means “my shop” or similar. Whether the word “boutique”, alone or in combination, can form the basis of a trademark, requires some exploration. It should in any case be kept in mind that: “It is not a per se breach of the UDRP to register the trademark of another as a domain name where the trademark is [also] a generic word”; Macmillan Publishers Limited, Macmillan Magazines Limited and HM Publishers Holdings Limited v. Telepathy, Inc, WIPO Case No. D2002-0658. See also the decision of the three member panel in Rollerblade, Inc. v. CBNO and Ray Redican Jr., WIPO Case No. D2000-0427: “Indeed, genericness, if established, will defeat a claim of trademark rights, even in a mark which is the subject of an incontestable registration”.
In the exercise of its powers to consult public databases (WIPO Overview 3.0 at section 4.8) the Panel has viewed the TMview international record of trademarks (“”). The word “boutique” appeared in 14,677 entries of which 6,629 remained registered (as distinct from filed, expired, or ended). The word “boutique” standing alone represented 186 trademarks, 54 of which remained registered. The word “my” appeared in 38,672 registered trademarks and is hardly distinguishing. The phrase “my boutique” or “myboutique” appeared in 8 registered trademarks, 6 of which included class 35 (which would include online sales) and stood alone in 4 registered trademarks, 2 of which included class 35.
Notwithstanding the high ranking of the Complainant’s website on a Google search conducted through “”, the first page of a search by the Panel for “myboutique” conducted through “/ncr” (“no country redirect”) on March 12, 2018 yielded (in sequence, some via Facebook): “My Boutique Clothing Australia”; “My Boutique online”, Buckinghamshire (2 ladies fashion outlets and an online shop); “My Boutique”, Slough (women’s clothing); “My Boutique Store”, Ireland (women’s clothing); “My Boutique Fashion”, Queensland, Australia; “My Boutique”, Victoria, Australia; “My Boutique” (a second listing of one of the above); “My Boutique Store”, UK (jewellery); Myboutique Underwear & Tights Shop Online UK (apparently associated with the Complainant under the URL “”); and “My Boutique Pillows”. A search for “my boutique Italy” produced a number of businesses and domain names incorporating the word “boutique”.
Without presuming to pre-empt the role of any trademark examiner, but for the purposes of a decision under the Policy, the Panel is not persuaded on the balance of probabilities by the strength of evidence produced by the Complainant that consumers would be more likely to associate “myboutique” with the Complainant than with the holders of trademarks in the same or similar form, whether registered or unregistered, or that the Complainant has acquired secondary meaning in its alleged trademark. “In cases involving unregistered or common law marks that are comprised solely of descriptive terms which are not inherently distinctive, there is a greater onus on the complainant to present evidence of acquired distinctiveness/secondary meaning” (WIPO Overview 3.0 at section 1.3).
The Panel has duly considered all of the Complainant’s evidence and submissions in this respect. The Complainant’s recent turnover may reflect the fame and reputation of the 9 or more distinctive brands it represents, but that does not equate with a trademark reputation for the Complainant’s online shop or for its domain name or “myboutique” mark. Having referred to extensive advertising of its shop, the Complainant has produced little more than a recent Facebook page and what appears to be an advertisement dated December 2015 (after the registration date of the disputed domain name), but captured on January 24, 2018, on the blog “Il Blog Di Manu” (“”). Evidence of public recognition or consumer surveys on the “feedaty” feedback website is confined to positive feedback dated between August and October 2017.
The Complainant has submitted the case of Imperial College v. Christophe Dessimoz, WIPO Case No. D2004-0322. The Panel finds that case to be distinguishable because the relevant trademark THE IDEA LEAGUE represented an alliance between the leading universities Imperial College London, ETH Zurich, Delft University of Technology and RWTH Aachen, set up as an unincorporated association under English law with considerable evidence of high-profile recognition, and the concerned respondent unquestionably had knowledge of this.
The Complainant has also quoted from Funskool (India) Ltd. v. Corporation, WIPO Case No. D2000-0796: “The Policy places no limitation on the operative extent of a trademark which the Complainant must show the disputed domain name to be identical or confusingly similar to”. That point is not in contention. The cited case also involved a respondent with admitted knowledge of the complainant, and transfer was nevertheless declined by the majority.
The Panel prefers the arguments set out in Michael Sweep v. Douglas Berry, WIPO Case No. D20120651. The relevant complainant, having traded and advertised under the trading name Brisbane Glass for more than 20 years, and also being the owner of the domain name , was found not to have sufficiently demonstrated rights in “Brisbane Glass” as a trademark under paragraph 4(a)(i) of the Policy.
Paragraph 4(a)(i) of the Policy is written in the present tense and requires that the Complainant “has” rights in a trademark. On the totality of the evidence and on the balance of probabilities, taking into account the plethora of users of trading names or trademarks identical or similar to “my boutique”, particularly in the field of clothing and fashion, the Panel finds that the Complainant has not sufficiently demonstrated secondary meaning that identifies it solely with the Complainant, probably not even in Italy. The Panel finds that the Complainant does not have rights in “myboutique” as an unregistered trademark within the meaning of paragraph 4(a)(i) of the Policy. For the same reason the Complainant did not have such rights at the time the disputed domain name was registered on April 1, 2015.
The Panel finds for the Respondent under paragraph 4(a)(i) of the Policy.
Whilst it is not essential to proceed further, the Panel will do so briefly for completeness. B. Rights or Legitimate Interests
The Complainant has asserted that the Respondent has no rights or legitimate interests in respect of the disputed domain name because it is passively held without demonstrable preparations for use for a bona fide offering of goods or services.
Under paragraph 4(c) of the Policy the Respondent may contest the Complainant’s prima facie case under paragraph 4(a)(ii) of the Policy and may establish rights or legitimate interests in a disputed domain name by demonstrating, without limitation:
(i) before any notice to [the Respondent] of the dispute, [the Respondent’s] use of, or 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) [the Respondent] [is] making a legitimate noncommercial 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”.
Irrespective of the provisions of paragraph 4(c) of the Policy, the legitimate registrant of a domain name is not obliged to put it to any particular use. The principle of first come first served that applies to the registration of domain names under the “.com” generic Top-Level Domain (“gTLD”) does not, however, provide a registrant with unfettered rights or legitimate interests in a domain name: “Domain names are available on a first come first served basis only subject to submission to a mandatory administrative proceeding where another party ... asserts the domain name infringes its rights under the Policy” (s. Oliver Bernd Freier GmbH & Co. KG v. Su Chin Tsai, WIPO Case No. D2009-1202). In the light of the finding under paragraph 4(a)(i) of the Policy that the Complainant does not have rights to be infringed, the Complainant is not in a position to prove that the Respondent is without rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The Complainant is required to prove under paragraph 4(a)(iii) of the Policy that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four alternative circumstances, without limitation, that shall be evidence of the registration and use of a domain name in bad faith by a respondent:
(i) circumstances indicating that [the Respondent] [has] registered or [has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) [the Respondent] [has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the Respondent] [has] engaged in a pattern of such conduct; or
(iii) [the Respondent] [has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, [the Respondent] [has] intentionally attempted to attract, for commercial gain, Internet users to [its] website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the Respondent’s] website or location or of a product or service on [the Respondent’s] website or location”.
The Complainant alleges bad faith primarily under paragraph 4(b)(i) of the Policy.
The Respondent plainly states its business as trading in domain names. Whereas previous decisions under the Policy are not binding, panels nevertheless strive for consistency in the application of the Policy. As many decisions have reaffirmed, trading in domain names is not, in and of itself, illegitimate. For example, the decision in PJS International SA v. Vertical Axis Inc. / Whois Privacy Services Pty Ltd., ( WIPO Case No. D2013-0805) said: “There is no evidence that the [then] Respondent acted in bad faith when it registered the disputed domain name, among the several thousand domain names that it claims to own. The mere fact of registering a large number of domain names is not proof by itself of bad faith, as there may exist a legitimate purpose in appropriating many domain names in the hope that some of them will enjoy commercial value. The situation is similar to that of the acquirer of many mining rights or oil concessions in the hope that some of them will be really worthy of development. As the [then] Complainant has not shown that its trademark was established (on a registered or unregistered basis) before the registration of the disputed domain name in 2003, the Panel cannot find bad faith registration on the part of the Respondent”.
Trading in domain names happens in a marketplace. Prices are struck between buyer and seller and it is not a function of the Policy to interfere in people’s bargains. Absent registration and use of a domain name in bad faith, such as the targeting of trademark holders, a respondent may monetise its stock of domain names by way of advertising and may set the asking prices for them. As stated by the three member panel in Informa Business Information, Inc. v. Privacydotlink Customer 640040 / Domain Manager, Web D.G. Ltd., WIPO Case No. D2017-1756, in which the then complainant held a registered trademark for “THE PINK SHEET” and the domain name contested was : “There is nothing in the record to suggest that the [then] Respondent, a domain name broker, competes in business with the [then] Complainant, or that it has sought to trade off goodwill attaching to the Complainant’s trademark. Since acquisition by the Respondent or its associated group entities, the disputed domain name appears to have resolved to a place keeper site that features an invitation to purchase the disputed domain name. As the Respondent is in the business of domain name broking, this is hardly surprising. Neither is the fact that the Respondent requested a purchase price of USD 100,000 following the Complainant’s unsolicited enquiry of it in August 2017. As in any market for commodities, domain name broking is about matching supply with demand; in the absence of any indicia of bad faith, there is nothing wrong per se with what the Complainant characterises as an ‘excessive offer’”.
The Panel does not find evidence, on balance, that the Respondent targeted the Complainant or has registered and used the disputed domain name in bad faith under paragraph 4(a)(iii) of the Policy. D. Reverse Domain Name Hijacking
The Respondent requests a finding of RDNH. In sum, this dispute follows an increasingly common pattern. First, the Complainant tries to buy the disputed domain name anonymously. The next step is commonly a lawyer’s letter setting out the intending purchaser’s registered trademark rights, which was not open to this Complainant. The third step is to bring a proceeding under the Policy. As the Respondent’s Declaration put it, “Evidentially [sic], finding the price too high and believing it could get it more cheaply, Complainant initiated this proceeding. As I understand it, this qualifies for reverse domain name hijacking”.
More would be required. The Panel is not persuaded that the Complaint was insincere or malicious or warrants a finding of RDNH. 7. Decision
For the foregoing reasons, the Complaint is denied.
Dr. Clive N.A. Trotman
Sole Panelist
Date: March 13, 2018
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