The Complainant is COFRA Holding AG, Switzerland, represented by Taylor Wessing, Germany.
The Respondent is Contact Privacy Inc. Customer 0157740153, Canada / Wenyan Hu, CA Mode, Germany. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 30, 2020. On June 30, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 2, 2020, 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 July 2, 2020 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 amendment to the Complaint on July 2, 2020. The Center verified that the Complaint together with the amendment to 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 July 8, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 28, 2020. On July 21, 2020, a third party sent an email to the Center, stating that it has no connection to the disputed domain name and that the Respondent has been using its address. On July 30, 2020, the Center notified the Parties of the commencement of the Panel appointment process. On July 30, 2020, the Respondent sent an informal email communication to the Center in reply to the Center’s email of July 30, 2020. The Center appointed Evan D. Brown as the sole panelist in this matter on August 10, 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 or its subsidiaries owns the trademark C&A, and has registered the mark in many jurisdictions around the world for a large range of goods and services, including fashion retail. For example, the Complainant owns rights under German Trademark No. 365196 for a stylized logo version of the mark C&A, registered on March 9, 1927. The Complainant also owns, inter alia, rights under European Union Trade Mark No. 000105882 for the word mark C&A, registered on May 17, 1999. The disputed domain name was registered on April 30, 2020. It has used the disputed domain name for the sale of women’s clothing. The Respondent caused the disputed domain name to redirect users to another site where clothing is offered for sale under the brand CA MODE. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark; 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. B. Respondent A third party contacted the Center on July 21, 2020 as described above. This third party expressed “shock” in that it believed someone was using this third party’s contact information in connection with the registration of the disputed domain name. It did not, however, substantively respond to the Complaint. Additionally, the Respondent did not formally reply to the Complainant’s contentions, but on July 30, 2020 sent a perfunctory email to the Center saying only that “I don’t know what’s going on. Please clarify”. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied: (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. A. Third Party Communication of July 21, 2020 The third party communicating with the Center via email on July 21, 2020 essentially claimed to be a victim of identity theft, asserting that someone else had used this third party’s contact information to register the disputed domain name. The Respondent, a person having a different name from the third party, using the email address provided for the registration of the dispute domain name, sent an email to the Center claiming to not understand what is going on in these proceedings. Neither of these parties filed any formal or substantive response to the Complaint. The Panel has considered these communications, however, neither of these communications bear on the substance of the issues in this case. B. Identical or Confusingly Similar A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. See, Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen,WIPO Case No. D2014-0657. The Complainant has demonstrated its rights in the C&A mark by providing evidence of its numerous trademark registrations. The disputed domain name incorporates a confusingly similar variation of the C&A mark. This is sufficient for showing confusing similarity under the Policy. The presence of the words “mode” and “deutschland” in the disputed domain name does not prevent a finding of confusing similarity. The Complainant has established this first element under the policy. C. Rights or Legitimate Interests The Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes that showing, the burden of production to demonstrate rights or legitimate interests shifts to the Respondent. The Complainant has established, prima facie, that the Respondent lacks rights or legitimate interests in the disputed domain name. On this point, the Complainant asserts, among other things, that: - The Respondent has not used the disputed domain name in connection with a bona fide offering of goods and services. - The Respondent has not used the disputed domain name in connection with a legitimate noncommercial use. - On the contrary, the Respondent has used the disputed domain name to sell goods identical to those offered and sold by the Complainant. - This overlap in the goods demonstrates the Respondent’s intent to gain illegitimate commercial benefit by using the disputed domain name. - There is no evidence the Respondent has been commonly known by the disputed domain name. - The Complainant has not licensed any rights to the Respondent to use the mark C&A in connection with the disputed domain name. These facts make the Complainant’s prima facie showing. The Respondent has not provided any evidence that rebuts this prima facie showing. The Panel finds that the Complainant has established this second element under the Policy. D. Registered and Used in Bad Faith The Policy requires the Complainant to establish that the disputed domain name was registered and is being used in bad faith. The Policy describes several non-exhaustive circumstances demonstrating a respondent’s bad faith registration and use. Under paragraph 4(b)(iv) of the Policy, a panel may find bad faith when a respondent “[uses] the domain name to intentionally attempt to attract, for commercial gain, Internet users to [respondent’s] website or other online location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] website or location or a product or service on [respondent’s] website or location”. Registering and using a domain name containing a mark confusingly similar to a well-known brand, to sell goods of the identical type for which that brand is known, is a clear example of bad faith under the Policy. The Complainant has successfully established the third UDRP element. 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 Evan D. Brown
Sole Panelist
Date: August 24, 2020
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