The Complainant is Mr. Gordon Ramsay, United States of America (“United States”), represented by Sheridans, United Kingdom.
The Respondent is Kushnarenko Oleksii, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 19, 2021. On January 19, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 20, 2021, 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 January 21, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On January 21, 2021 the Center transmitted an email to the parties in English and Russian regarding the language of proceedings. On February 3, 2021 the Complainant filed an amendment to the Complaint and requested that the language of the proceedings be English. The Respondent did not submit a language request. 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 February 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 2, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 3, 2021. The Center appointed Assen Alexiev as the sole panelist in this matter on March 16, 2021. 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 multi-Michelin starred chef with numerous restaurants around the world, and also a successful television personality. His content is being made available on the Internet at the website “www.gordonramsay.com”, as well as through his Instagram page and YouTube channel. The Complainant owns the following trademark registrations for the sign “GORDON RAMSAY” (the “GORDON RAMSAY trademark”): - United Kingdom trademark GORDON RAMSAY with registration No. UK00002127000, registered on March 18, 1997 for goods and services in International Classes 16 and 42; - European Union trademark GORDON RAMSAY with registration No. 003744208, registered on August 24, 2005 for goods and services in International Classes 29, 30, and 43; and - United States trademark GORDON RAMSAY with registration No. 3480629, registered on August 5, 2008 for goods and services in International Classes 29, 30, and 43. The disputed domain name was registered on February 22, 2019. At the time of filing of the Complaint, it resolved to a website containing recipes by the Complainant and information about the Complainant’s restaurants. The website also contained links to the recipes of another celebrity chef, Jamie Oliver. It seems no longer to resolve. A. Complainant The Complainant states that the disputed domain name is confusingly similar to his GORDON RAMSAY trademark, with the only difference that the letter “a” is replaced with the letter “u”, so “ramsay” is replaced with “rumsay”, but this does not have any impact on the overall impression of the disputed domain name, which is instantly recognizable as the name of the Complainant. In result, there is a risk that the disputed domain name may be perceived as being owned by or otherwise affiliated to the Complainant, particularly given that the associated website features the Complainant’s own recipes and contains numerous references to him and his restaurants. According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain name, because the Complainant has not granted any permission to the Respondent to create the disputed domain name by incorporating the Complainant’s GORDON RAMSAY trademark in it. The Complainant points out that the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, but for a website that contains sponsored or affiliate links, and is seeking to derive an advantage from user confusion by attracting Internet users through the misuse of the widely-known GORDON RAMSAY trademark for the Respondent’s own commercial purposes. The Complainant contends that the disputed domain name was registered and is being used in bad faith. The Complainant points out that the disputed domain name was registered many years after the registration of the widely-known GORDON RAMSAY trademark, so the Respondent knew or should have known of this trademark when it registered the disputed domain name. According to the Complainant, the Respondent is using the disputed domain name to intentionally attract, for commercial gain, Internet users to the website at the disputed domain name by creating a confusion with the GORDON RAMSAY trademark as to the source, sponsorship, affiliation, or endorsement of its website, which displays cooking recipes that are unauthorized derivative works based on the Complainant’s own recipes as well as photographs which are copies of the Complainant’s own photographs. The Complainant’s recipes and photographs are protected by national and international copyright laws and the copying and distribution of derivative works based on them amounts to copyright infringement. The Complainant further notes that the Respondent is using the disputed domain name for commercial gain in connection with sponsored advertising or affiliate links for various products, including cooking apparatus and the Complainant’s own books. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Procedural issue – Language of the proceeding According to the information provided by the Registrar, the language of the Registration Agreement for the disputed domain name is Russian. Under paragraph 11 of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, 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 requests that the language of the proceedings be English. He submits that the Respondent understands English, because the content of the website at the disputed domain name is available in English. The Complainant also states that it would be unfair and cause an unwarranted delay if the Complainant is required to translate his Complaint in Russian. The Center has sent all its communications to the Respondent in both English and Russian, and has invited the Respondent to express its views on the language of the proceeding. The Respondent has not submitted a Response or any objections to the Complainants’ request that the proceedings be held in English. The Panel also notes that the name Gordon Ramsay is an English-language name of a British celebrity. The above satisfies the Panel that the Respondent would not be disadvantaged if the language of the proceeding is English, and that using the English language in this proceeding would be fair and efficient. Therefore, in exercise of its powers under paragraph 11 of the Rules, the Panel decides that the language of this administrative proceeding will be English. 6.2 Substantive issues Pursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name: (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 Respondent has registered and is using the disputed domain name in bad faith. In this case, the Center has employed the required measures to achieve actual notice of the Complaint to the Respondent, in compliance with the Rules, paragraph 2(a), and the Respondent was given a fair opportunity to present its case. By the Rules, paragraph 5(c)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name […]” The Respondent however did not submit a Response in this proceeding. A. Identical or Confusingly Similar The Complainant has provided evidence that he is the owner of various registrations of the GORDON RAMSAY trademark and has thus established his rights in this trademark for the purposes of the present proceeding. The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the Top-Level Domain (“TLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). See section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Panel sees no reason not to follow the same approach here, so it will disregard the “.com” gTLD section of the disputed domain name. The disputed domain name incorporates the GORDON RAMSAY trademark in its entirety with only one letter changed, so the trademark is easily recognizable in the disputed domain name, which is affirmed by the content on the associated website. In cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. See section 1.7 of the WIPO Overview 3.0. In view of the above, the Panel finds that the disputed domain name is confusingly similar to the GORDON RAMSAY trademark in which the Complainant has rights. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often-impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. See section 2.1 of the WIPO Overview 3.0. The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, stating that the Complainant has not authorized the Respondent to use the GORDON RAMSAY trademark, and that the Respondent is using the disputed domain name for a website that displays cooking recipes that are unauthorized derivative works based on the Complainant’s own recipes as well as photographs which are copies of the Complainant’s own photographs, as well as sponsored advertising or affiliate links for various products and links to the recipes of another celebrity chef. Thus, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not submitted a Response and has not alleged that it has rights or legitimate interests in the disputed domain name and has not disputed the Complainant’s allegations in this proceeding. The evidence in the case file shows that the disputed domain name indeed resolves to a website that features recipes and photographs of the Complainant, but also contained links to recipes of Jamie Oliver and various advertising links. In view of the above, the Panel is satisfied that it is more likely than not that the Respondent, being well aware of the goodwill of the Complainant’s GORDON RAMSAY trademark, has registered a typosquatting version of it as the disputed domain name in an attempt to exploit the trademark’s goodwill to attract Internet users to the Respondent’s website which uses without authorization copyrighted materials of the Complainant and contains advertising links for commercial gain. To the Panel, such conduct does not appear to be legitimate nor giving rise to rights or legitimate interests of the Respondents in the disputed domain names. The Panel also notes that the website at the disputed domain name contained a disclaimer for the lack of relationship between the Parties, but the Panel does not consider that the presence of this disclaimer renders the Respondent’s activities bona fide under the Policy. When Internet users have a chance to read the disclaimer they have already been attracted to the Respondent’s website, under the impression that it is associated with the Complainant, and would be exposed to the unauthorized content, the advertising links and the links to a competitor of the Complainant that appear on the Respondent’s website. In view of the above, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely: “(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.” As discussed above, the disputed domain name is confusingly similar to the GORDON RAMSAY trademark and represents a typosquatting version of it. The Respondent does not deny that it has used the disputed domain name for a website that contains unauthorized copies of recipes and photographs of the Complainant, which could very well be copyright infringement, but also contains links to recipes of a competitor of the Complainant and various advertising links. As discussed in the section on rights and legitimate interests above, the presence of a disclaimer on the Respondent’s website does not render its activities bona fide under the Policy. Taking the above into account, the Panel accepts that it is more likely than not that the Respondent has registered and used the disputed domain name with knowledge of the Complainant and targeting the GORDON RAMSAY trademark in an attempt to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the GORDON RAMSAY trademark as to the affiliation or endorsement of its website and the content on it. Therefore, the Panel finds that the disputed domain name has been registered and 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 disputed domain name Assen Alexiev
Sole Panelist
Date: March 31, 2021
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