The Complainant is Kings Landing Limited, United Arab Emirates, represented by Page White & Farrer Limited, United Kingdom.
The Respondent is Ji Zhou Chen, United Kingdom. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 7, 2020. On September 7, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 8, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 10, 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 September 15, 2020. 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, and the proceedings commenced on September 17, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 7, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 12, 2020. The Center appointed Willem J. H. Leppink as the sole panelist in this matter on October 15, 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 the proprietor of inter alia European Union Trademark registration no. 844001 for the word mark JAEGER, registered for goods and services in classes 3, 9, 18, 23 and 25, with registration date November 19, 1999, and European Union Trademark registration no. 846543 for the figurative mark JAEGER, registered for goods and services in classes 3, 9, 14, 17, 23 and 25, with registration date November 19, 1999. The above mentioned trademarks are hereinafter referred to as the “Trademark”. The Complainant has acquired the trademark portfolio relating to the JAEGER marks, including the Trademark, from The Jaeger Company Ltd. The Trademark is currently used in respect of a wide range of clothing and shoes for men and women, as well as accessories. Consumers can purchase JAEGER branded products through the Complainant’s website “www.jaeger.co.uk”. The domain name The Domain Name was registered on December 6, 2018, and the website related to the Domain Name is selling women’s clothes online. 5. Parties’ Contentions A. Complainant The following is a summary of the Complainant’s contentions. The Domain Name incorporates the Trademark in its entirety and adds the descriptive words “dresses” and “sale”, and the generic Top-Level Domain (“gTLD”) “.com”. The dominant and distinctive element of the Domain Name is the word “jaeger”, which is identical to the Trademark. The addition of the generic terms is not sufficient to escape a finding of confusing similarity and does not change the overall impression of the Domain Name as being connected to the Trademark. Furthermore, the Complainant refers to the Respondent’s use of the Trademark on the website behind the Domain Name (the “Website”). The Respondent uses the Trademark in the identical stylized format of the Complainant. The Respondent has no rights nor legitimate interests in the Domain Name. The Respondent is not related in any way to the Complainant’s business. No license nor authorization has been granted to the Respondent to register the Domain Name. The Website gives the impression that the use of the Trademark is endorsed by the Complainant. The Respondent has not taken any steps to distance the Website from the Complainant, nor to notify visitors that the Website is not related to the Complainant. Furthermore, the Respondent seems to be engaged in a pattern of trademark-abusive domain name registrations and the Complainant has reasons to believe that earlier successful complaints have been filed against the Respondent. The Domain Name is registered and is being used in bad faith. The Respondent’s use of the Domain Name falsely suggests affiliation with the Complainant due to the inclusion of the Trademark. The Trademark used on the Website is identically styled as the Trademark. By using and registering the Domain Name, the Respondent is intentionally attempting to attract for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Trademark as to the source, sponsorship, affiliation, or endorsement of the Website. Internet users, encountering the Website, will be confused or deceived into believing that the Domain Name is operated by and/or associated with the Complainant. The Complainant is aware of at least one consumer that have already been deceived by the Respondent’s use of the Trademark as part of the Domain Name B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements: (i) the 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 Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant must demonstrate that it has rights in a trademark or service mark and, if so, the Domain Name must be shown to be identical or confusingly similar to that mark. It is not disputed that the Complainant has rights in the Trademark. This satisfies the Panel that the Complainant has established that it owns trademark rights in JAEGER for the purposes of the Policy. As set out in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7, the first element functions primarily as a standing requirement. The threshold test for confusing similarity between the Domain Name and the Trademark involves a relatively straightforward comparison. In light of the foregoing, the Panel finds that the Domain Name is confusingly similar to the Trademark. The Domain Name consists of the element “jaeger”, which is identical to the Trademark, and is accompanied by the dictionary terms “sale” and “dresses”. As the Domain Name incorporates the Trademark in its entirety, the addition of these dictionary terms does not prevent a finding of confusing similarity. Therefore, the Panel is satisfied that the first element of the Policy is met. B. Rights or Legitimate Interests The Respondent did not reply to the Complainant’s contentions. For that reason, the Panel has taken careful note of the factual assertions that have been made and supported by evidence provided by the Complainant. In particular, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has rights or legitimate interests in the Domain Names, such as: (i) use or preparation to use the Domain Names or a name corresponding to the Domain Names in connection with a bona fide offering of goods or services prior to notice of the dispute; or (ii) being commonly known by the Domain Names (as an individual, business or other organization) even if the Respondent has not acquired any trademark or service mark rights; or (iii) making legitimate noncommercial or fair use of the Domain Names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The question whether the Respondent is using the Domain Name in connection with a bona fide offering of goods, has to be assessed in light of the previously mentioned decision in Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903. In order for the use to be qualified as a “bona fide offering of goods”, the offering of the goods must meet several requirements, according to the consensus view in UDRP decisions, often referred to as the “Oki Data criteria”. Those include, at minimum, the following: - the respondent must actually be offering the goods or services at issue; - the respondent must use the website of the domain name to sell only the trademarked goods, otherwise, it could be using the trademark to bait Internet users and then switch them to other goods; - the respondent must not try to corner the market in all domain names, thus it must not deprive the trademark owner of reflecting its own mark in a domain name; and, - the website of the domain name must accurately disclose the respondent’s relationship with the trademark owner; it may not, for example, falsely suggest that the respondent is the trademark owner, or that its website is the official site, if, in fact, it is only one of many sales agents. See, e.g., Houghton Mifflin Co. v. The Weatherman, Inc.,WIPO Case No. D2001-0211. The Panel finds that the Respondent does not meet the above mentioned requirements. Based on the evidence, the Panel ascertained that the Website lacks a disclaimer and in fact conveys the impression that the Respondent is an authorized reseller of the Complainant’s products. Therefore, the Respondent tries to provide the impression that the Respondent is somehow affiliated to the Complainant. In addition, the second requirement of the Oki Data criteria as cited above, is not met as other branded products are also offered on the Website. Furthermore, given the circumstance of this case, the Panel finds that the Respondent’s lack of rights or legitimate interests in the Domain Name may also be inferred by the fact that no response was filed by the Respondent. According to earlier UDRP decisions “non-response is indicative of a lack of interest inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights” (see Pomellato S.p.A. v. Richard Tonetti,WIPO Case No. D2000-0493 and GA Modefine S.A. and Giorgio Armani S.p.A. v. Yoon-Min Yang,WIPO Case No. D2005-0090). Therefore, based on the evidence, the Panel is satisfied that the second element of the Policy is met. C. Registered and Used in Bad Faith The Panel refers to its findings under section 4.B of this decision and finds that the Domain Name was registered and is being used in bad faith. In light of the evidence filed by the Complainant and the absence of a response, the Panel finds that the Trademark is, as well as the activities of the Complainant, internationally known. Furthermore, the Domain Name was registered after the registration date of the Trademark. Accordingly, in the Panel’s view, the Respondent must have been aware of the Complainant’s existence and rights at the time of registering the Domain Name, which is a requisite for a finding of registration of the Domain Name in bad faith (see AB Gustaf Kähr v. Prasanth sp, inet,WIPO Case No. D2011-1455; Real Madrid Club De Futbol v. Michele Dinoia,WIPO Case No. D2010-0261; and Advance Magazine Publishers Inc. v. Pablo Palermao,WIPO Case No. D2008-0026). Moreover, as JAEGER branded products are being offered on the Website and lacking a Response, it can assumed that the Respondent had the Trademark in mind when registering the Domain Name. The Panel finds that, in accordance with section 3.1.4 of WIPO Overview 3.0, the facts of the case point to an intent on the part of the Respondent to unfairly profit from the Complainant’s rights in this regard. Therefore, the Panel finds that the Respondent has registered the Domain Name in bad faith. The Domain Name is designed to imply that there is an affiliation between the Respondent and the Complainant, or that the Complainant endorses the Respondent’s activities even though no such affiliation or endorsement exists. UDRP panels have consistently held that it is bad faith to misrepresent an affiliation with a third party where none exists (Caterpillar Inc. v. Matthew Quin,WIPO Case No. D2000-0314). The Panel finds that by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Trademark as to the source, sponsorship, affiliation, or endorsement of the Website or of a product on the Website.be Finally, although the previously mentioned lack of a reply by the Respondent as such cannot by itself lead to the conclusion that there is use in bad faith, the cumulative circumstances as outlined in the decision are sufficient for the Panel to find that the use of the Domain Name by the Respondent is in bad faith. Therefore, the Panel finds that the Respondent uses the Domain Name in bad faith. In light of the above circumstances, the Panel is satisfied that the third element of the Policy is met and that the Domain Name was registered and is being 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 Domain Name Willem J. H. Leppink
Sole Panelist
Date: October 21, 2020
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