Complainant is Bella Freud Limited, of London, United Kingdom, represented by Freeths LLP, United Kingdom.
Respondent is Guanting Quan Guan, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 3, 2020. On July 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 6, 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 Complainant on July 6, 2020 providing the registrant and contact information disclosed by the Registrar and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on July 14, 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 Respondent of the Complaint, and the proceedings commenced on July 14, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 3, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 4, 2020. The Center appointed Scott R. Austin as the sole panelist in this matter on August 17, 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 Complainant states in its Complaint and provides evidence in the respective Annexes sufficient to support that Complainant is the registered proprietor of the registered marks for the well-known international fashion brand of designer Bella Freud, who is the largest shareholder and Managing Director of Complainant. Based in London, England, Complainant was incorporated on August 9, 2012, and manages products traded under the BELLA FREUD mark since as early as 1990. Complainant’s BELLA FREUD mark is a widely recognized brand in the fashion industry, as evidenced by coverage of its collections in leading fashion magazines and distribution of its products through leading fashion retailers. Complainant also markets its fashion items under the BELLA FREUD mark through its website accessed at “www.bellafreud.com” (the “ Bella Freud Website ”). Complainant holds numerous trademark registrations for the BELLA FREUD mark effective in the United Kingdom and in the United States of America, including United Kingdom Trademark Registration No. 3047856, registered on June 20, 2014, and United States of America Trademark Registration No. 4953366, registered on May 10, 2016. The disputed domain name was registered on July 17, 2018, and resolves to a corresponding fake website pretending to be Complainant featuring digital content copied directly from Complainant’s Bella Freud Website, including its logo, mark and counterfeit versions of Complainant’s fashions offered at heavily reduced prices. 5. Parties’ Contentions A. Complainant Complainant contends that the disputed domain name is identical or confusingly similar to Complainant’s trademark; that 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 Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings To succeed, 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 Complainant has rights; (ii) 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. The standard of proof under the Policy is often expressed as the “balance of the probabilities” or “preponderance of the evidence” standard. Under this standard, an asserting party needs to establish that it is more likely than not that the claimed fact is true. See, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.2. A. Identical or Confusingly Similar Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0, section 1.2.1. Complainant has demonstrated its rights because it has shown that it is the holder of multiple valid and subsisting trademark registrations for the mark BELLA FREUD. See Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen,WIPO Case No. D2014-0657. Prior UDRP panels have held “the fact that a domain name wholly incorporates a complainant’s registered mark is sufficient to establish identity or confusing similarity for purposes of the Policy despite the addition of other words to such marks”. Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903. The Panel finds here that the disputed domain name wholly incorporates Complainant’s registered BELLA FREUD mark. Furthermore, the addition of the dictionary term “shop” does not prevent a finding of confusing similarity. See WIPO Overview 3.0, section 1.8. Accordingly, the Panel finds that Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Under the second element of the Policy, a complainant is first required to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. If the complainant makes that showing, the burden of production on this element shifts to the respondent to come forward with relevant evidence of such rights or legitimate interests in the domain name. If the respondent fails to come forward with such evidence, a complainant is generally deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. See also, Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Complainant has established, prima facie, that Respondent lacks rights or legitimate interests in the disputed domain name. First, Complainant asserts that it has not licensed, or otherwise authorized Respondent to use the BELLA FREUD mark in any manner, nor is Complainant in any way or manner associated with or related to Respondent. Complainant has also claimed with persuasive evidence submitted that Respondent is not commonly known by the name “Bella Freud”. It is generally regarded as prima facie evidence of no rights or legitimate interests if a complainant shows that the disputed domain name is identical or confusingly similar to the complainant’s trademark, that the respondent is not commonly known by the disputed domain name, and that the complainant has not authorized the respondent to use its mark (or an expression which is confusingly similar to its mark), whether in the disputed domain name or otherwise. See, Roust Trading Limited v. AMG LLC,WIPO Case No. D2007-1857. Most importantly, Complainant’s evidence shows the disputed domain name resolves to Respondent’s counterfeit website featuring the BELLA FREUD mark above a gallery of fashion items using digital images and graphics clearly copied directly from Complainant’s Bella Freud Website. Complainant further shows that Respondent has used the disputed domain name to conduct fraudulent activities by offering counterfeits of Complainant’s fashion products at its fake site at heavily reduced prices. Complainant’s evidence shows that Respondent is using the disputed domain name solely for the purpose of perpetrating a fraud through pretending an affiliation with Complainant. The Panel finds Respondent has no rights to or legitimate interests in the disputed domain name. See, Valero Energy Corporation and Valero Marketing and Supply Company v. Valero Energy,WIPO Case No. D2017-0075. These facts establish Complainant’s prima facie showing. Respondent has not provided any basis on which that showing may be overcome. In addition, the Panel notes that the composition of the disputed domain name carries a risk of implied affiliation with the Complainant. WIPO Overview 3.0, section 2.5.1. Complainant has successfully met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Because Complainant’s BELLA FREUD mark is an internationally well-known fashion brand, it is implausible to believe that Respondent was not aware of that mark when it registered its confusingly similar disputed domain name to access a counterfeit website. In the circumstances of this case, where Respondent registered the disputed domain name to engage in per se illegitimate activity, such a showing is sufficient to establish bad faith registration. See, WIPO Overview 3.0, section 3.1.4. Bad faith use is clear from Respondent’s website accessed through the disputed domain name, created for the purposes of perpetrating fraud to confuse consumers to visit Respondent’s fake site to purchase counterfeit products by suggesting an affiliation with Complainant as discussed in detail in 6.B. above. Given the substantial evidence on file that shows use of the disputed domain name to commit fraud against Complainant by offering counterfeits of Complainant’s fashion products, the Panel finds bad faith use. See, Valero Energy, supra; Graybar Services Inc. v. Graybar Elec, Grayberinc Lawrenge,WIPO Case No. D2009-1017. For these reasons, the Panel finds that Complainant has met its burden under paragraph 4(a)(iii) of 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 Scott R. Austin
Sole Panelist
Date: August 28, 2020
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