The Complainant is JD Sports Fashion (France) S.A.S., France, represented by Urquhart-Dykes & Lord, United Kingdom.
The Respondent is Nguyen Long Chau, Viet Nam. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 9, 2019. On December 9, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 11, 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 January 2, 2020, the Center notified the Parties in both English and Vietnamese that the language of the registration agreement for the disputed domain name is Vietnamese. On January 2, 2020, the Complainant pointed out that it had included detailed arguments as to why English should be the language for the proceedings in the Complaint and at this time the Complainant has nothing further to add to the those arguments. The Respondent did not submit any request regarding 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 in English and Vietnamese, and the proceedings commenced on January 9, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 29, 2020. A part from two brief emails in the Vietnamese language, received from the Respondent of January 9, 2020, no formal Response was filed with the Center. The Center notified parties of commencement of Panel appointment on February 5, 2020. The Center appointed Keiji Kondo as the sole panelist in this matter on February 21, 2020. 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 multi-channel retailer of international footwear brands and sports fashion wear in France. Two former executives of the retailer, Decathlon, founded the Complainant in 1980. The two founders decided to develop the concept of a specialist footwear retailer in the sports fashion sector. Today, the Complainant operates 69 stores in town centers and shopping centers across France under the CHAUSPORT brand. Since its foundation in 1980 to this date, the Complainant traded under the CHAUSPORT brand. The stores of the Complainant sell leading international footwear brands such as NIKE, ADIDAS, and LE COQ SPORTIF along with brands that are popular in France. The Complainant is the owner of European Union Trademark Registration No. 008519977 for CHAUSPORT. This trademark was filed on September 1, 2009 and registered on February 22, 2010. The trademark is registered for a range of goods and services including footwear. This trademark claims priority based on French trademark registration No. 1698343, which was filed on October 1, 1991. The disputed domain name The disputed domain name consists of “chausport” and the descriptive number “365”. The number “365” is descriptive as it indicates the number of days in a year. UDRP panels widely agree that incorporating a trademark into a domain name can be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark for purpose of the Policy (see, for example, Uniroyal Engineered Products, Inc. v. Nauga Network Services,WIPO Case No. D2000‑0503; Thaigem Global Marketing Limited v. Sanchai Aree,WIPO Case No. D2002-0358; and F Hoffmann-La Roche AG v. Relish Entreprises,WIPO Case No. D2007-1629). The dominant part of the disputed domain name is “chausport”. The addition of the descriptive number “365” does not exclude a finding that the disputed domain name is identical or confusingly similar to the Complainant’s registered trademark “CHAUSPORT” (see, among others: Sanofi v. \ud55c\ub098 \uc774,WIPO Case No. D2019-2064; IKEA Systems B.V. v. Guang Yang,WIPO Case No. D2014-0838). The disputed domain name is being used in relation to a website advertising and offering for sale sports footwear, including such well-known brands as ADIDAS, NIKE, and CONVERSE. The Complainant has no business or other relationship with the Respondent. The Complainant has not consented to the registration of the disputed domain name or its subsequent use by the Respondent. To the best of the Complainant’s knowledge, the Respondent is not commonly known by the disputed domain name. The Respondent is not making legitimate or noncommercial or fair use of the disputed domain name. The Respondent is using the disputed domain name with the intent of misleading consumers and/or harming the reputation enjoyed by the Complainant. The Respondent can have no legitimate justification for holding or using the disputed domain name. The disputed domain name was registered in bad faith and is being used in bad faith for a number of reasons. Firstly, due to the reputation that the Complainant enjoys in the trademark CHAUSPORT, under, which it operates a chain of retail stores and a network of ecommerce websites in France, selling sports fashion including footwear under the ADIDAS, NIKE, and LE COQ SPORTIF brands, it is hard to believe that the disputed domain name was registered, or is being used, in good faith, without the Respondent’s knowledge of the Complainant and the trademark CHAUSPORT. Secondly, by virtue of the longstanding and widespread use of the CHAUSPORT trademark in France, members of the public would believe that any website at the disputed domain name was being operated by the Complainant or in association with the Complainant. Thirdly, the use of the disputed domain name amounts to a misrepresentation to consumers of an association with the Complainant and its goodwill in the trademark CHAUSPORT, which will result in an infringement of the trademark of the Complainant. Fourthly, the Respondent is advertising and offering for sale sports footwear bearing such well known trademarks as ADIDAS, NIKE, and CONVERSE. This is likely to lead to disruption of the business of the Complainant under the CHAUSPORT trademark. Consumers will believe that the website at the disputed domain name is in some way connected with, associated with or related to the activities of the Complainant under the CHAUSPORT trademark. The Disputed Domain Name has been registered and is being used in such a way as to create an association with the Complainant for the commercial gain of the Respondent. B. Respondent The Respondent did not reply to the Complainant’s contentions, but the Respondent sent a short email message to the Center, which was written in Vietnamese and appears to refer to a website at “ego-sport.mysapo.net”. 6. Discussion and Findings 6.1 Language of the Proceeding In its email transmitted to the Center on December 11, 2019, the Registrar reported that the language of the Registration Agreement is Vietnamese. The Complainant requested that English be the language of the proceeding in the Complaint, and confirmed its request in the communication to the Center on January 2, 2020. Considering the following circumstances, the Panel, exercising its authority to determine the language of the proceeding under paragraph 11(a) of the Rules, has decided English as the language of the proceeding: - The Complaint was filed in English; - The Complainant is a French entity, and represented by a UK law firm; - The Respondent’s address is in Viet Nam; - On January 2, 2020, the Center sent a communication to the Parties, in English and Vietnamese, regarding the language of the proceeding, but the Respondent did not comment on the language of the proceeding; - The Respondent did not reply to the Complainant’s contentions in any way; - The disputed domain name comprises French/English terms; and - Ordering the translation of the Complaint would only result in extra delay and cost for the Complainant. 6.2 Substantive Issues A. Identical or Confusingly Similar The Complainant’s trademark is CHAUSPORT. The disputed domain name consists of “chausport” and the number “365”. An ordinary observer of the disputed domain name will recognize that the number “365” indicates the number of days in a year. Therefore, the part “chausport” of the disputed domain name is easily recognized separately from the part “365”. The disputed domain name entirely incorporates the Complainant’s trademark, and the addition of “365” does not prevent ordinary observers from finding similarity between the disputed domain name and the Complainant’s trademark. Accordingly, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests The disputed domain name has been used in relation to a website advertising and offering for sale sports footwear, including such well-known brands as ADIDAS, NIKE, and CONVERSE. The Complainant is in a similar business, but the Complainant has no business or other relationship with the Respondent. The Complainant has not consented to the registration of the disputed domain name or its subsequent use by the Respondent. Therefore, the Panel finds that the Respondent has not been using the disputed domain name in connection with a bona fide offering of goods or services. The Respondent’s name is Nguyen Long Chau. Although the Respondent’s name includes “Chau”, and combination of “chau” and “sport” could have created the disputed domain name, the Respondent has not submitted any contention that he has incorporated a part of his name in the disputed domain name, moreover, the disputed domain name clearly competes with the Complainant’s identical mark. Therefore, the Panel finds that the Respondent has not been commonly known by the disputed domain name. As mentioned above, the Respondent has used the disputed domain name in relation to a website advertising and offering for sale sports footwear, including such well-known brands as ADIDAS, NIKE, and CONVERSE. The use is obviously a commercial use. Therefore, the Panel finds that the Respondent’s use of the disputed domain name is not a legitimate noncommercial or fair use. Accordingly, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The Complainant was established in 1980, and the first application for registration of the Complainant’s trademark was filed in France in1991. On the other hand, the disputed domain name was registered on October 22, 2019. The Complainant operates a chain of retail stores and a network of ecommerce websites in France, selling sports fashion including footwear. The Respondent’s also operates a website for selling sports footwear. By the time of registration of the disputed domain name, the Complainant’s business should have been known to the Respondent. Under the circumstances, it is inconceivable that the Respondent registered the disputed domain name without knowledge of the Complainant or the Complainant’s trademark. Obviously, Internet users visiting the Respondent’s website at the disputed domain name will be misled to believe that the Respondent is related to the Complainant in some manner because of the similarity between the Complainant’s trademark and the disputed domain name together with the similarity of the businesses that the Complainant and the Respondent are engaged with. Therefore, the Panel finds that the Respondent registered the disputed domain name, and has been using it, to attract, for commercial gain, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement or the Respondent’s website. In this regard, the Respondent’s reference to the website at “ego-sport.mysapo.net” may suggest that the Respondent’s website at the disputed domain name has been moved to a new location under the different domain name, and the Respondent might be prepared to shut down the present website at the disputed domain name. However, even if the present website were shut down (i.e., if were passively held), it would not prevent a finding of bad faith use. Accordingly, 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, Keiji Kondo
Sole Panelist
Date: March 3, 2020
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