Complainant is The Skullhead Luxembourg, Luxembourg, represented by Atlan & Boksenbaum Avocats, France.
Respondent is Yue Lan Chen, United Kingdom. 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 July 17, 2019. On July 18, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 18, 2019, 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 Complainant on July 22, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. On July 26, 2019, Complainant filed an amended Complaint
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 Respondent of the Complaint, and the proceedings commenced on July 29, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 18, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 26, 2019.
On September 2, 2019, the Center appointed Roberto Bianchi as the sole panelist in this matter. 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
Complainant is a limited liability company established in Luxembourg.
Complainant owns numerous trademark registrations i.e., (for clothing and accessories) for THE KOOPLES in various jurisdictions, including the following:
THE KOOPLES, International Trademark Registration No. 978688, registered on May 28, 2008, duly renewed, covering goods in Classes 14, 18 and 25.
THE KOOPLES, International Trademark Registration No. 999463, registered on November 28, 2008, duly renewed, covering goods in Classes 3, 9, 14, 18, 25, and services in classes 41 and 45.
THE KOOPLES, International Trademark Registration No. 1119253, registered on March 8, 2012, covering services in Class 35.
The disputed domain name was registered on January 10, 2019.
The disputed domain name resolves to a website offering for sale clothing and apparel for men and women at substantial discounts. 5. Parties’ Contentions
Complainant contends that the disputed domain name is identical or confusingly similar to the THE KOOPLES trademark, in which Complainant has rights. The disputed domain name reproduces Complainant’s THE KOOPLES trademarks. In addition, the radical of the disputed domain name reproduces the radical of the domain name , operated by The Kooples Production, Complainant’s exclusive licensee. Moreover, the content of the website at the disputed domain name offers for sale ready-to-wear clothing and accessories, using Complainant’s THE KOOPLES trademarks without authorization. These acts constitute counterfeiting. As a result, the website at the disputed domain name is very similar to Complainant’s THE KOOPLES trademarks, and to Complainant’s “www.” website.
Complainant also contends that Respondent has no rights or legitimate interests in respect of the disputed domain name. Respondent unduly benefits from the success of the products developed by Complainant, and from the international notoriety of the THE KOOPLES trademarks. Respondent is selling products under the THE KOOPLES trademarks at deceptive prices. In consequence, Respondent is making a non-legitimate commercial and unfair use of the disputed domain name, with intent for commercial gain misleadingly to divert consumers or to tarnish the THE KOOPLES trademarks.
Lastly, Complainant submits that the disputed domain name was registered and is being used in bad faith. The disputed domain name was registered primarily for disrupting the business of Complainant. By using the disputed domain name, Respondent intentionally attempted to attract for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s THE KOOPLES trademarks as to the source, sponsorship, affiliation or endorsement of Respondent’s website or location, or of a product or service on Respondent’s website or location. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
In its visit to the WIPO’s Global Brand Database, the Panel confirmed that Complainant owns several international registrations for the THE KOOPLES trademark, covering multiple goods and services, including the registrations listed in section 4 above. Thus, Complainant has shown that it owns rights in the THE KOOPLES trademark for purposes of Policy paragraph 4(a)(i).
The Panel notes that in the disputed domain name the THE KOOPLES mark is reproduced in its entirety, with the addition of the dictionary term “outlet” and the generic top level domain “.com”. It is well established that such kind of additions would not prevent a finding of confusing similarity under the first element. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8. The Panel finds that the disputed domain name is confusingly similar to Complainant’s THE KOOPLE trademark. B. Rights or Legitimate Interests
The Panel notes that according to the relevant WhoIs data, the registrant of the disputed domain name is “Yue Lan Chen”, and there is no evidence that this person is known by the disputed domain name. This excludes prima facie the applicability of Policy paragraph 4(c)(ii).
Complainant has shown that on the website at the disputed domain name, ready-to-wear “The Kooples” garments and dresses for men and women are being offered for sale on pages, each of them displaying Complainant’s “The Kooples” registered logo. Complainant says that Respondent’s offering of these products constitutes counterfeiting. Further, the Panel observes that on the website at the disputed domain name there is a text in French stating that the products offered on the website are of “authentic quality”, and that “the packaging is original.” 1
Obviously, in absence of any concrete evidence, the Panel is unable to determine whether the products offered on the website at the disputed domain name are in fact fakes or not. However, a number of circumstances suggest that, at the very least, Respondent’s offering is neither a bona fide use pursuant to Policy paragraph 4(c)(i) nor a fair or legitimate noncommercial use without intent for commercial gain to misleadingly divert consumers under Policy paragraph 4(c)(iii):
First, Complainant’s “The Kooples” logo is prominently displayed on the website at the disputed domain name. Second, on this website there is no indication of the person or entity responsible for the offering of the goods being offered, i.e., the owner of the website. Third, neither a physical address nor a phone number of the offeror are provided on the website. (There is only an email address for the user to ask for help). Fourth, even if Respondent were a reseller of legitimate goods, it does not accurately and prominently disclose its relationship (if any) with Complainant. Thus, Respondent fails to comply with the cumulative requirements of OKI Data Americas, Inc. v. ASD Inc.,WIPO Case No. D2001-0903, as reflected in the WIPO Overview 3.0, section 2.8.
In the Panel´s view, Complainant has successfully raised a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. For its part, Respondent failed to provide the Panel with any explanation or reasons for having registered the disputed domain name, or for using it as shown.
Accordingly, the Panel finds that Respondent does not have any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The Panel notes that Complainant’s registrations for its THE KOOPLES trademark predate the registration of the disputed domain name by well over a decade. See section 4 above. The Panel also notes that Complainant’s semi-figurative trademark is prominently being used as a heading on each page of the website at the disputed domain name, where purported THE KOOPLES dresses, skirts, shoes, pants, shirts, bags, coats, et cetera, for ladies and gentlemen are being offered for sale at heavy discounts (well over 60%). This use of Complainant’s mark shows that Respondent perfectly knew of and targeted Complainant, its trademark and products at the time of registering the disputed domain name. In the context of this case, this means that the registration of the disputed domain name was in bad faith.
The Panel also notes that on the website at the disputed domain name, Respondent is creating the false impression that it is somehow affiliated with Complainant, or that it is a legitimate, authorized reseller of Complainant’s “The Kooples” goods. In addition, Respondent failed to publish any disclaimer, or to otherwise disclose the nature of its relationship to Complainant (if any).
The Panel considers that by using the disputed domain name as shown, Respondent is intentionally attempting to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s THE KOOPLES trademark as to the source, sponsorship, affiliation, or endorsement of its website or of products on its website. Whether the items marketed on Respondent’s website are authentic or not, this use of the disputed domain name is in bad faith pursuant to Policy paragraph 4(b)(iv).
Lastly, the Panel notes that Respondent failed to present in this proceeding any arguments or reasons in its own favor, such as an explanation for its use of the disputed domain name as shown.
The Panel concludes that the disputed domain name has been 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.
Roberto Bianchi
Sole Panelist
Date: September 16, 2019
1 « Cher Monsieur/Madame, Merci pour le shopping. Sorry. Please utiliser la carte de crédit Master à payer, la carte de crédit VISA est temporairement fermé. Les produits sont de qualité authentique et des emballages originaux. Nous allons fournir la qualité et le meilleur service. Toute aide, s'il vous plaît n'hésitez pas à nous contacter. Merci.”
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