The Complainants are ASOS plc, ASOS Holdings Limited, and ASOS.com Limited, United Kingdom, represented by Stobbs IP Limited, United Kingdom.
The Respondent is 姚晓云 (Yao Xiao Yun), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 27, 2021. On August 30, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 1, 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 Complainants on September 6, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amended Complaint in English on September 11, 2021.
On September 6, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the administrative proceeding. On September 9, 2021, the Complainants confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the administrative 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 in English and Chinese of the Complaint, and the proceeding commenced on September 20, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 10, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 11, 2021.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on October 20, 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. ComplainantsThe First Complainant, ASOS plc, is a company listed on the London Stock Exchange and the parent company of the Second Complainant, ASOS Holdings Limited, and the Third Complainant, ASOS.com Limited.
Each of the Complainants is a company incorporated in the United Kingdom.
The “Miss Selfridge” retail fashion brand was launched in the United Kingdom in 1966. The United Kingdom, the European Union, and the United States of America are the brand’s key markets; and products under the brand are shipped by the Complainants to over 200 countries.
The First Complainant purchased the “Miss Selfridge” fashion brand on February 1, 2021.
The Second Complainant is the owner of numerous registrations in jurisdictions worldwide for the trade mark MISS SELFRIDGE (the “Trade Mark”), including United Kingdom registration No. UK00002002266, with a registration date of February 23, 1996; and International registration No. 864102, with a registration date of June 22, 2005.
The Third Complainant is the owner of several domain name registrations comprising the Trade Mark, including
The Respondent is an individual resident in China.
C. The Disputed Domain NameThe disputed domain name was registered on May 31, 2020.
D. Use of the Disputed Domain NameThe disputed domain name has not been used for an active website.
5. Parties’ Contentions A. ComplainantsThe Complainants contend that the disputed domain name is identical or confusingly similar to the Trade Mark; 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 Complainants’ 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 Complainants have requested that the language of the proceeding be English, for several reasons, including: (i)the fact the disputed domain name is in Latin script, which supports the conclusion that the Respondent understands, or is at least competent in English; (ii)the Complainants are unable to understand Chinese; and (iii)translating the Complaint into Chinese would lead to undue delay and substantial additional expense.
The Panel would have accepted a response in Chinese, but the Respondent did not file a response and did not contest this proceeding, notwithstanding its initial language request.
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 Complainants 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 Complainants have rights in the Trade Mark acquired through use and registration.
The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7) together with the letters “uk”, the commonly used acronym for the United Kingdom, the country where the Complainants and their “Miss Selfridge” fashion brand are headquartered.
Where a relevant trade mark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0, section 1.8).
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark, and that the Complainants have satisfied paragraph 4(a)(i) of the Policy.
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 Complainants have not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the 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 it 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 disputed domain name has not been used for an active 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 Complainants’ 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, and that the Complainants have satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithGiven the notoriety of the Complainants and of their Trade Mark in the fashion retail field; the distinctiveness of the Trade Mark; the fact the Trade Mark has no meaning in the Chinese language; the fact the disputed domain name is confusingly similar to the Trade Mark; and the lack of any substantiated credible explanation from the Respondent, the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out. The Panel considers it is inconceivable that the Respondent was not aware of the Complainants’ Trade Mark at the time it registered the disputed domain name. Furthermore, the Respondent’s non-use or passive holding of the disputed domain name would not prevent a finding of bad faith under 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, and that the Complainants have satisfied paragraph 4(a)(iii) of the Policy.
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: November 3, 2021