The Complainant is Skorpio Limited, Switzerland, represented by Keltie LLP, United Kingdom.
The Respondent is Tan Rong (谭荣), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 29, 2021. On June 30, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 30, 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 August 2, 2021 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 amendment to the Complaint in English on August 4, 2021.
On August 2, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On August 4, 2021, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 in English and Chinese of the Complaint, and the proceeding commenced on August 9, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 29, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 31, 2021.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on September 29, 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 A. ComplainantThe Complainant is a company incorporated in Switzerland that manages the intellectual property rights of the American fashion designer Rick Owens.
The Complainant is the owner of registrations for the trade mark RICK OWENS (the “Trade Mark”) in jurisdictions worldwide, including European Union registration No. 002493294, with a registration date of May 21, 2003; United States of America registration No. 2857230, with a registration date of June 29, 2004; and Chinese registration No. 6162781, with a registration date of August 7, 2014.
B. RespondentThe Respondent is apparently an individual resident in China.
C. The Disputed Domain NameThe disputed domain name was registered on April 8, 2021.
D. The Website at the Disputed Domain NameThe disputed domain name has been used by the Respondent in respect of a Chinese language website with commercial links to pornographic and gambling websites (the “Website”).
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain name is identical or confusingly similar to its registered and unregistered trade marks; the Respondent has no rights or legitimate interests in respect of the disputed domain name; and the disputed domain name has been registered and is being used in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1. Language of the ProceedingThe language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the Parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the Parties and undue delay to the proceeding.
The Panel would have accepted a response in Chinese, but the Respondent did not file a formal response and did not file any submissions with respect to the language of the proceeding.
In exercising its discretion to use a language other than that of the Registration Agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties’ ability to understand and use the proposed language, time and costs.
Although there is insufficient evidence before the Panel to support a conclusion that the Respondent is conversant in English, the Panel notes that the Respondent has taken no part in this proceeding; and that all of the Center’s communications with the Parties have been sent in English and Chinese.
The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
6.2. Substantive Elements of the PolicyThe Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly SimilarThe Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name consists of a common, obvious, or intentional misspelling of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, section 1.9).
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark.
B. Rights or Legitimate InterestsParagraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Complainant’s Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption. The Respondent has failed to show that he/she has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the Respondent has made use of the disputed domain name, for commercial gain, by providing links to pornographic and gambling related websites on the Website.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad FaithIn light of the evidence of the Respondent’s use of the Website in the manner described above, noting the nature of the disputed domain name (being almost identical to the Complainant’s Trade Mark) the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith.
7. DecisionFor 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
Sebastian M.W. Hughes
Sole Panelist
Dated: October 13, 2021