The Complainant is Jacquemus SAS, France, represented by DBK – Société d’avocats, France.
The Respondent is wenben zhou, 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 August 5, 2020. On August 5, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On August 14, 2020, 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 for the Disputed Domain Name. 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 August 18, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 7, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 8, 2020. The Center appointed Lynda M. Braun as the sole panelist in this matter on September 14, 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 French company based in Paris, France. The Complainant was founded by a young fashion designer, Simon Porte Jacquemus. Since 2013 the Complainant has used the trademark JACQUEMUS to identify its collections of high-end clothing and fashion accessories. The Complainant’s founder has a growing reputation in the fashion sector and is the subject of a number of articles in well-known fashion magazines. The Complainant’s creations are purchased and worn by celebrities and social media influencers. The Complainant’s clothing and fashion accessories are now sold in 50 different countries worldwide. The Complainant is the owner of numerous trademarks worldwide, including the following: - JACQUEMUS, International Trademark Registration No. 1211398, registered on February 5, 2014, in international classes 9, 18 and 25; - JACQUEMUS, International Trademark Registration No. 1513829, registered on November 19, 2019, in international classes 14, 24 and 28, designating certain jurisdictions worldwide, including China, where the Respondent is located; and - JACQUEMUS, European Union Trade Mark Registration No. 018080381, registered on October 18, 2019, in international classes 14, 24 and 28. The foregoing trademarks will hereinafter collectively be referred to as the “JACQUEMUS Mark”. The Complainant is also the owner of the domain name The Disputed Domain Name was registered on May 4, 2020. The Disputed Domain Name resolves to a website containing “Jacquemus” goods at extremely reduced prices. The Complaint includes screenshots of the website at the Disputed Domain Name. 1 The Complainant sent cease and desist letters to the Respondent on May 22 and June 17, 2020, but did not receive any response. 5. Parties’ Contentions A. Complainant The following are the Complainant’s contentions: - the Disputed Domain Name is confusingly similar to the Complainant’s trademark. - the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. - the Disputed Domain Name was registered and is being used in bad faith. The Complainant contends that the website at the Disputed Domain Name offering for sale products at very low prices also reproduces pictures from the Complainant’s original website without the Complainant’s consent. The Complainant seeks the transfer of the Disputed Domain Name from the Respondent in accordance with paragraph 4(i) of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order for the Complainant to prevail and have the Disputed Domain Name transferred to the Complainant, the Complainant must prove the following (Policy, paragraph 4(a)(i-iii)): (i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (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. Identical or Confusingly Similar This element consists of two parts: first, does the Complainant have rights in a relevant trademark and, second, is the Disputed Domain Name identical or confusingly similar to that trademark. The Panel concludes that the Disputed Domain Name is confusingly similar to the JACQUEMUS Mark. It is uncontroverted that the Complainant has established rights in the JACQUEMUS Mark based on its years of use as well as its registered trademarks for the JACQUEMUS Mark in numerous jurisdictions worldwide. The general rule is that “registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive”. See CWI, Inc. v. Domain Administrator c/o Dynadot,WIPO Case No. D2015-1734. The Respondent has not rebutted this presumption, and therefore the Panel finds that the Complainant has rights in the JACQUEMUS Mark. The Disputed Domain Name It is well established that a disputed domain name that wholly incorporates a trademark may be confusingly similar to that trademark for purposes of the Policy despite the addition of a descriptive or dictionary word. See Allianz Global Investors of America, L.P. and Pacific Investment Management Company (PIMCO) v. Bingo-Bongo,WIPO Case No. D2011-0795; see also Hoffmann-La Roche, Inc. v. Wei-Chun Hsia,WIPO Case No. D2008-0923. As stated in section 1.8 of the Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), “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”. Finally, the addition of a gTLD, such as “.com”, in a domain name is technically required. Thus, it is well established that such element may typically be disregarded when assessing whether a domain name is identical or confusingly similar to a trademark. See Proactiva Medio Ambiente, S.A. v. Proactiva,WIPO Case No. D2012-0182. Thus, the Disputed Domain Name is confusingly similar to the Complainant’s JACQUEMUS Mark. Accordingly, the first element of paragraph 4(a) of the Policy has been met by the Complainant. B. Rights or Legitimate Interests Under the Policy, a complainant has to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, the respondent bears the burden of production to demonstrate rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview 3.0, section 2.1. There is no evidence in the record suggesting that the Respondent has rights or legitimate interests in the Disputed Domain Name. The Complainant has not authorized, licensed, or otherwise permitted the Respondent to use the Complainant’s JACQUEMUS Mark. The Complainant does not have any business relationship with the Respondent, nor is the Respondent making a legitimate noncommercial or fair use of the Disputed Domain Name. Based on the use made of the Disputed Domain Name to resolve to a website containing infringing or counterfeit goods bearing the JACQUEMUS Mark and reproducing pictures from the Complainant’s original website without the Complainant’s consent, the Panel finds that the Respondent is not making a bona fide offering of goods or services nor making a legitimate noncommercial or fair use of the Disputed Domain Name. There is also no evidence that the Respondent is commonly known by the Disputed Domain Names or by any name similar to it. Moreover, the Panel finds that the Disputed Domain Name carries a risk of implied affiliation. See WIPO Overview 3.0 , section 2.5.1 . In this case, the Panel finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The Respondent has not submitted any substantive arguments or evidence to rebut the Complainant’s prima facie case. As such, the Panel determines that the Respondent does not have rights or legitimate interests in the Disputed Domain Name. Accordingly, the second element of paragraph 4(a) of the Policy has been met by the Complainant. C. Registered and Used in Bad Faith The Panel finds that based on the record, the Complainant has demonstrated the existence of the Respondent’s bad faith pursuant to paragraph 4(b) of the Policy. First, the Disputed Domain Name was registered after the Complainant first began using the JACQUEMUS Mark. The Panel finds it likely that the Respondent had the Complainant’s JACQUEMUS Mark in mind when registering the Disputed Domain Name, thus demonstrating bad faith. Second, the Respondent attempted to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s JACQUEMUS Mark. The Panel finds that the Respondent registered the Disputed Domain Name to attract customers to its website by using a domain name that is confusingly similar to the Complainant’s JACQUEMUS Mark. The use of a domain name to intentionally attempt to attract Internet users to a registrant’s website by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website for commercial gain demonstrates registration and use in bad faith. Further, the fact that the Disputed Domain Name currently resolves to a page containing malicious software is yet another example of the Respondent’s bad faith. Finally, as noted supra, the Complainant’s attorney sent the Respondent two cease and desist letters to which the Respondent did not reply. The Respondent therefore was made aware of the Complainant’s rights in the JACQUEMUS Mark and the Complainant’s demand that the Respondent transfer the Disputed Domain Name to the Complainant. The Respondent’s failure to respond to a cease and desist letter has been considered relevant in the finding of bad faith. See News Group Newspapers Limited and News Network Limited v. Momm Amed Ia,WIPO Case No. D2000-1623; Nike, Inc. v. Azumano Travel,WIPO Case No. D2000-1598; and America Online, Inc. v. Antonio R. Diaz,WIPO Case No. D2000-1460. Accordingly, the third element of paragraph 4(a) of the Policy has been met by the Complainant. 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 Lynda M. Braun 1 As of the writing of this Decision, however, the Disputed Domain Name resolves to a page that states: “Dangerous Page – Threat type: Scam” and also states that the page contains malicious software.
Sole Panelist
Date: September 28, 2020
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