The Complainant is BA&SH, France, represented by Cabinet Bouchara, France.
The Respondent is Yan Wei, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2019. On October 22, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 23, 2019, 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. On October 31, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on October 31, 2019. The Respondent did not comment on the language of the proceeding. 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 11, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 1, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 2, 2019. The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on December 13, 2019. 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 company active in the fashion industry, headquartered in France. The Complainant markets its products through both brick-and-mortar and online stores (including on the Complainant’s official website available under its domain name The Complainant provides evidence that it owns a portfolio of valid trademark registrations for BA&SH in France and in the rest of the European Union, e.g.: French trademark registration number 3444110, filed on August 1, 2006 and European Union Trademark registration number 5679758, filed on January 30, 2007 and registered on February 10, 2012. Incidentally, the relevant registered trademarks adduced by the Complainant were successfully registered prior to the registration date of the disputed domain name, which was registered on July 31, 2019. The Complainant provides evidence that the disputed domain name directs to an active website, containing an elaborate e-commerce platform which presents itself as an official BA&SH sales channel, and offers what appears to be BA&SH branded clothing for sale. 5. Parties’ Contentions A. Complainant The Complainant essentially contends that the disputed domain name is identical to its trademarks for BA&SH, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered, and is being used in bad faith. The Complainant provides a detailed bailiff report regarding the contents of the website linked to the disputed domain, which offers unauthorized BA&SH branded clothing for sale. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name and constitutes use in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Preliminary Issue: Language of the Proceeding Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. The Complainant stated in its Complaint that to the best of its knowledge, the language of the Registration Agreement was Chinese. Nevertheless, the Complainant filed its Complaint in English, and requests that the language of proceedings be English. In considering the Complainant’s request that the language of the proceeding be English, the Panel has carefully considered all elements of this case, in particular, the Complainant’s request that the language of the proceeding be English; the lack of comment on the language of the proceeding and the lack of response on the merits of the Respondent (the Panel notes that the Respondent had the opportunity to put forward arguments in either English or Chinese); the fact that the disputed domain name resolves to an active webpage, which only contains text in English (and contains no text in Chinese), so that the Panel concludes that the Respondent is able to understand and communicate in English; and the fact that Chinese as the language of the proceeding could lead to unwarranted costs for the Complainant. In view of all these elements, the Panel rules that the language of the proceeding shall be English. 6.2. Discussion and Findings on the merits The Policy requires the Complainant to prove three elements: (i) the disputed 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 respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. Based on the evidence and arguments submitted, the Panel’s findings are as follows: A. Identical or Confusingly Similar The Panel finds that the Complainant has provided sufficient evidence that it has valid rights in its BA&SH marks, based on the use and registration of the same as trademarks by the Complainant, incidentally years prior to the registration of the disputed domain name. Moreover, as to identity or confusing similarity of the disputed domain name with the Complainant’s marks, the disputed domain name consists of two elements, being the components “Bash” and “Online”. As to the first component “Bash”, the Panel finds that this component is confusingly similar to the Complainant’s trademarks for BA&SH, especially given the fact that the ampersand symbol “&” cannot be used when registering a domain name, and that therefore, registrants usually either omit the ampersand, as was the case with the disputed domain name, or replace it by “and” (see also Dolce & Gabbana s.r.l. v. Xiaohua Lin,WIPO Case No. D2013-0604). As to the second component “Online”, the Panel considers that this component is a dictionary term, and can therefore not prevent a finding of confusing similarity, see the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8. The Top-Level Domain “.store” can be disregarded as a standard registration requirement, see WIPO Overview 3.0, section 1.11. Accordingly, the Panel rules that the disputed domain name is confusingly similar to the Complainant’s BA&SH trademarks, and that the Complainant has satisfied the requirements for the first element under the Policy. B. Rights or Legitimate Interests The Complainant has demonstrated that the Respondent is not an authorized reseller, service provider, licensee or distributor, and is not making legitimate noncommercial use or fair use of the Complainant's trademarks. To the contrary, the Respondent is actively using the disputed domain name, which is confusingly similar to the Complainant’s trademarks, to mislead Internet users into visiting the website linked to the disputed domain name, presenting an e-commerce platform offering what seems to be BA&SH branded clothing for sale. This shows the Respondent’s intention to divert consumers to the disputed domain name for commercial gain, by taking unfair advantage of the goodwill and reputation of the Complainant’s trademarks for BA&SH. The Panel therefore considers that none of the circumstances of legitimate interests envisaged by paragraph 4(c) of the Policy apply. Furthermore, the Respondent is not commonly known by the disputed domain name, and the nature of the disputed domain name carries a risk of implied affiliation with the Complainant (see WIPO Overview 3.0, section 2.5.1). The Panel also notes that no evidence or arguments have been submitted by the Respondent in reply. The Panel therefore rules that the Complainant has satisfied the requirements for the second element under the Policy. C. Registered and Used in Bad Faith The registration of the disputed domain name, which is confusingly similar to the Complainant’s trademarks, and which took place years after the first registration and use of the Complainant’s trademarks for BA&SH, is clearly intended to mislead and divert consumers to the disputed domain name. Even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned, and owns, trademarks in BA&SH and uses these extensively, including on the Internet. The Panel further notes the nature of the disputed domain name, which carries a risk of implied affiliation or association with the Complainant. In the Panel’s view, this clearly indicates the bad faith of the Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain name in bad faith. As to use of the disputed domain name in bad faith, the Complainant provides evidence that the disputed domain name is linked to an active website, containing an elaborate e-commerce platform which presents itself as a BA&SH clothing sales channel (giving the impression of being an official sales channel or creating confusion as to the affiliation or association with the Complainant), and offers what appears to be BA&SH branded clothing for sale. The Panel notes that the Respondent is actively misleading Internet users into believing that it may be an official sales channel of the Complainant or associated with the Complainant, through a variety of measures, including prominently displaying the BA&SH mark in the website banner, the absence of a clear and prominent disclaimer, displaying misleading information in the “about us” and “FAQ” sections etc. The Panel rules that such use of the disputed domain name is a clear case of bad faith use of the disputed domain name. The Panel therefore rules that it has been demonstrated that the Respondent is using the disputed domain name in bad faith. Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third requirement under 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 Deanna Wong Wai Man
Sole Panelist
Date: December 19, 2019
Full & Egal Universal Law Academy