The Complainant is Jemella Group Limited, United Kingdom, represented by Demys Limited, United Kingdom.
The Respondent is 欧志婷 (Zhi Ting Ou), 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 July 16, 2020. On July 16, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 17, 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 17, 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 amended Complaint on July 20, 2020. On July 17, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed the request that English be the language of the proceeding on July 20, 2020. The Respondent did not comment on the language of the proceeding. 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 the Respondent of the Complaint in English and Chinese, and the proceedings commenced on July 24, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 13, 2020. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on August 14, 2020. The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on August 24, 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 manufactures and distributes haircare products, including hair straightening irons. The Complainant was incorporated in 2003 in Leeds, United Kingdom, and later expanded its business activities into continental European Union, Australia, South Africa and the United States of America. The Complainant has grown into a large international business, reaching EUR 14 million in profits in 2019. The Complainant provides evidence that it owns a trademark portfolio for GHD, which stands for “good hair day”, see inter alia European Union Trade Mark registration number 2860518, registered on April 21, 2004 and United States of America trademark registration number 2855191, registered on June 15, 2004. The disputed domain name was created on March 6, 2020. The disputed domain name currently directs to an active webpage, offering for sale GHD-branded haircare products. 5. Parties’ Contentions A. Complainant The Complainant essentially contends that the disputed domain name is confusingly similar to its trademarks for GHD, 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 claims that its trademark is distinctive and used intensively, and submits company and marketing information as well as press articles about its business operations. The Complainant particularly contends that the Respondent is using the disputed domain name to sell counterfeit goods, that the Respondent is copying the contents of the Complainant’s official website, abusing the Complainant’s copyrighted product photographs and misleading consumers as to the origin of the goods sold on the website linked to the disputed domain name. 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. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Preliminary Issue: Language of the administrative 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 the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. The Complainant states that the language of the Registration Agreement is Chinese, but nevertheless filed its Complaint in English, requesting that the language of the proceeding be English. The Complainant essentially contends that the disputed domain name is in English, that the contents of the website hosted at the disputed domain name are also exclusively in English and that the use of Chinese as the language of the administrative proceeding would result in undue costs and burden on the Complainant. The Respondent did not comment on the language of the proceeding. The Panel has carefully considered all elements of this case, and considers the following elements particularly relevant: the Complainant’s request that the language of the proceeding be English; the Respondent’s lack of comments on the language and on the merits of this administrative proceeding; the fact that the disputed domain name is in English and that the website hosted at the disputed domain name is also exclusively in English, from which the Panel deducts 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 delays and costs for the Complainant. In view of all these elements, the Panel rules that the language of the administrative 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 shown that it has valid rights in the mark GHD based on its intensive use and registration of the same as a trademark. As to identity or confusing similarity with the Complainant’s trademark, the Panel notes that the disputed domain name consists of two elements, namely the Complainant’s trademark GHD and the merely descriptive word “beauty”. The applicable generic Top-Level Domain (“gTLD”) (“.shop” in this case) is viewed as a standard registration requirement, and may, as such, be disregarded by the Panel, see in this regard the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), section 1.11.1. The Panel also refers to WIPO Overview 3.0, section 1.8, which states: “where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.” Accordingly, the Panel finds that the disputed domain name contains the Complainant’s trademark GHD combined with a merely descriptive term, and is therefore confusingly similar to the Complainant’s registered trademark. The Panel rules that the Complainant has satisfied the requirements of the first element under the Policy. B. Rights or Legitimate Interests On the basis of the evidence and arguments submitted, the Panel holds that the Complainant makes out a prima facie case that that the Respondent is not, and has never been, an authorized reseller, service provider, licensee or distributor of the Complainant, is not a good faith provider of goods or services under the disputed domain name and is not making legitimate noncommercial use or fair use of the Complainant’s trademarks. The Panel also notes that the Respondent is not commonly known by the disputed domain name. As such, the Panel finds that the burden of production regarding this element shifts to the Respondent (see WIPO Overview 3.0, section 2.1). However, no evidence or arguments have been submitted by the Respondent in reply. Moreover, reviewing the facts, the Panel notes that the disputed domain name directs to an active webpage showing a clear intent on the part of the Respondent to obtain unlawful commercial gains from diverting consumers and offering for sale unauthorized products branded and sold with the Complainant’s trademark for GHD. This shows that the Respondent uses the disputed domain name to take unfair advantage of the goodwill and reputation of the Complainant’s trademarks for GHD. The Panel finds that such use does not convey rights or legitimate interests in the disputed domain name to the Respondent. On the basis of the foregoing, the Panel considers that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply, and that the Complainant has satisfied the requirements of the second element under the Policy. C. Registered and Used in Bad Faith The Panel finds that the registration of the disputed domain name was clearly intended to take unfair advantage of the Complainant’s trademark, by using it to mislead and divert consumers to the disputed domain name. Given the distinctiveness and fame of the Complainant’s trademark, the Panel holds that the registration of the disputed domain name, clearly targeting the Complainant’s well-known trademark, was obtained in bad faith. Moreover, 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 registered trademarks in GHD and used these extensively. In the Panel’s view, the preceding elements clearly establish the bad faith of the Respondent in registering the disputed domain name. As to use of the disputed domain name in bad faith, the Panel notes that the disputed domain name directs to an active e-commerce website, offering unauthorized GHD-branded products for sale. The Complainant provides evidence that the contents of the website are also extremely similar to the Complainant’s official website, that it clearly displays the Complainant’s copyrighted product images and provides misleading information at the “About Us” and “Contact Us” sections of the website. All these elements wrongly suggest that the Respondent’s website is at least connected to the Complainant. The Panel concludes that the Respondent attempts to pass its website linked to the disputed domain name off as an official website operated by the Complainant. The foregoing elements lead the Panel to conclude that the Respondent is using the disputed domain name in bad faith, to take unfair advantage of the Complainant’s trademarks and reputation, for commercial gains. The Panel therefore rules that it has been demonstrated that the Respondent is using the disputed domain name in bad faith. Finally, the Respondent 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 element 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: September 7, 2020
Full & Egal Universal Law Academy