Complainant is LK Bennett Fashion Limited, United Kingdom, represented by SILKA AB, Sweden.
Respondent is 陈梦怡 (chen mengyi), 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 September 10, 2021. On September 10, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 14, 2021, 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 Complainant on September 14, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint in English on September 15, 2021.
On September 14, 2021, the Center transmitted another email communication to the Parties in English and Chinese regarding the language of the proceeding. On September 15, 2021, Complainant confirmed its request that English be the language of the proceeding. 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 Respondent in English and Chinese of the Complaint, and the proceedings commenced on September 20, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 10, 2021. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 18, 2021.
The Center appointed Kimberley Chen Nobles as the sole panelist in this matter on November 4, 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 BackgroundComplainant, LK Bennett Fashion Limited, a British luxury brand, was founded by Linda Bennett in London in 1990. It is the owner of the International Trademark registration for LK BENNETT registered on February 18, 2017 with registration number 1347425, designating various countries, including China where Respondent operates and resides. Complainant also holds numerous Chinese trademark registrations for L.K. BENNETT, registered prior to May 15, 2020, the date of the Domain Name registration. For example, the Chinese trademark registration number 3442543 for L.K. BENNETT, registered on November 28, 2004. Complainant owns and operates their official website at “www.lkbennett.com” and offers L.K. Bennett products for sale through their official website or in L.K Bennett stores. Complainant also has a significant presence on various social media platforms, such as Facebook, YouTube, Instagram, and Twitter.
Respondent registered the Domain Name on May 15, 2020. At the time of the filing of the Complaint, the Domain Name resolved to a website that offers products similar to Complainant’s products.
5. Parties’ Contentions A. ComplainantComplainant contends that (i) the Domain Name is identical or confusingly similar to Complainant’s trademarks; (ii) Respondent has no rights or legitimate interests in the Domain Name; and (iii) Respondent registered and is using the Domain Name in bad faith.
In particular, Complainant contends that it has trademark registrations for the LK BENNETT marks and owns domain names incorporating the LK BENNETT marks. Complainant contends that Respondent registered and is using the Domain Name to confuse Internet users looking for bona fide and well-known LK BENNETT products and services.
Complainant notes that it has no affiliation with Respondent, nor authorized Respondent to register or use a domain name, which includes Complainant’s marks, and that Respondent has no rights or legitimate interests in the registration and use of the Domain Name. Rather, Complainant contends that Respondent has acted in bad faith in acquiring and setting up the Domain Name, when Respondent clearly knew of Complainant’s rights.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and Findings 6.1. Preliminary Procedural Issue – Language of the ProceedingThe Rules, in paragraph 11(a), provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the 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.
Complainant submitted its original Complaint in English. In its Complaint and its email communication to the Center on September 15, 2021, Complainant requests that the language of the proceeding should be English. According to the information received from the Registrar, the language of the Registration Agreement for the Domain Name is Chinese.
Complainant contends that Respondent chose the generic Top Level Domain (“TLD”) “.com” instead of country code TLD “.cn”, indicating that Respondent is targeting international customers, and that the website is also operated in English, which strongly suggests that Respondent is familiar with English. Complainant also contends that it would be unfairly burdensome for Complainant to translate and conduct the proceeding in Chinese.
In exercising its discretion to use a language other than that of the Registration Agreement for the Domain Name, 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.
The Panel accepts Complainant’s submissions regarding the language of the proceeding. The Panel notes that the Center notified the Parties in both Chinese and English of the language of the proceeding as well as notified Respondent in both Chinese and English of the Complaint. Respondent chose not to comment on the language of the proceeding nor did Respondent choose to file a Response. Further, the Panel notes that the Domain Name was registered using Latin characters.
The Panel is also mindful of the need to ensure that the proceeding is conducted in a timely and cost-effective manner. Complainant may be unduly disadvantaged by having to translate the Complaint into Chinese and to conduct the proceeding in Chinese.
Having considered all the circumstances of this case, the Panel determines that English is the language of the proceeding.
6.2. Substantive IssuesUnder paragraph 4(a) of the Policy, to succeed, Complainant must satisfy the Panel that:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name was registered and is being used in bad faith.
Section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states:
“Does a respondent’s default/failure to respond to the complainant’s contentions automatically result in the complaint succeeding?
Noting the burden of proof on the complainant, a respondent’s default (i.e., failure to submit a response) would not by itself mean that the complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true.”
Thus, although in this case Respondent has failed to respond to the Complaint, the burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. See, e.g., The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340.
A. Identical or Confusingly SimilarOwnership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. See WIPO Overview 3.0, section 1.2.1. Complainant provided evidence of its rights in the LK BENNETT mark, as noted above. Complainant has also submitted evidence, which supports that the LK BENNETT mark is a widely known trademark and a distinctive identifier of Complainant’s products and services. Complainant has therefore proven that it has the requisite rights in the LK BENNETT mark.
With Complainant’s rights in the LK BENNETT mark established, the remaining question under the first element of the Policy is whether the Domain Name, typically disregarding the TLD in which it is registered (in this case, “.com”), is identical or confusingly similar to Complainant’s mark. See, e.g., B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross,WIPO Case No. D2010-0842.
Here, the Domain Name is confusingly similar to Complainant’s LK BENNETT mark. This mark is entirely duplicated and recognizable in the Domain Name. The incorporation of the LK BENNETT mark with the addition of the letters ”uk”, in the Domain Name
Thus, the Panel finds that Complainant has satisfied the first element of paragraph 4(a) of the Policy.
B. Rights or Legitimate InterestsUnder paragraph 4(a)(ii) of the Policy, a complainant must make at least a prima facie showing that a respondent possesses no rights or legitimate interests in a disputed domain name. See, e.g., Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once a complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
From the record in this case, it is evident that Respondent was, and is, aware of Complainant and the LK BENNETT mark, and does not have any rights or legitimate interests in the Domain Name. Complainant has confirmed that Respondent is not affiliated with Complainant, or otherwise authorized or licensed to use the LK BENNETT trademark or to seek registration of any domain name incorporating the trademark. Respondent is also not known to be associated with or commonly known by the LK BENNETT mark.
In addition, Respondent has not used the Domain Name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent is offering unauthorized goods on a website that imitates Complainant’s website. Moreover, Respondent’s website displays text stating:
“Copyright © 2021 L.K.Bennett UK Outlet Store Sale Up To 70% Off | Luxury Women's Clothing & Fashion. All Rights Reserved. Louis Vuitton Louis Vuitton Bags Superdry Monsoon Miss Selfridge Britax Ted Baker”
The displayed text creates the impression that Respondent has ownership rights in the LK BENNETT mark. Furthermore, the text provides references to brands such as Luis Vuitton, Superdry, Ted Baker, etc., which are competitive to Complainant’s goods and services. The Domain Name is also used to mislead consumers into thinking that the website is endorsed by Complainant offering products for sale at a discounted price. Potential customers are also encouraged to create an account on Respondent’s website where sensitive consumer information may be collected. Such use does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use, and cannot under the circumstances confer on Respondent any rights or legitimate interests in the Domain Name. See, e.g., Intesa Sanpaolo S.p.A. v. Charles Duke / Oneandone Private Registration,WIPO Case No. D2013-0875. Moreover, there is no evidence showing that Respondent has been commonly known by the Domain Name.
Accordingly, Complainant has provided evidence supporting its prima facie claim that Respondent lacks any rights or legitimate interests in the Domain Name. Respondent has failed to produce countervailing evidence of any rights or legitimate interests in the Domain Name. Thus, the Panel concludes that Respondent does not have any rights or legitimate interests in the Domain Name and Complainant has met its burden under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThe Panel finds that Respondent’s actions indicate that Respondent registered and is using the Domain Name in bad faith.
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances indicating bad faith registration and use on the part of a domain name registrant, 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.”
The Panel finds that Complainant provided ample evidence to show that registration and use of the LK BENNETT mark predates the registration of the Domain Name, more specifically, the LK BENNETT mark, has been registered since at least as early as 2017, well before the registration of the Domain Name on May 15, 2020. Complainant is also well established and known. Indeed, the record shows that Complainant’s LK BENNETT mark and related services are widely known and recognized including in China, where Respondent operates and resides. Therefore, Respondent knew or should have known Complainant and its LK BENNETT mark at the time of registration of the Domain Name. See WIPO Overview 3.0, section 3.2.2; see also TTT Moneycorp Limited v. Privacy Gods / Privacy Gods Limited,WIPO Case No. D2016-1973.
The Panel therefore finds that Respondent’s awareness of Complainant’s trademark rights at the time of registration suggests bad faith. See Red Bull GmbH v. Credit du Léman SA, Jean-Denis Deletraz,WIPO Case No. D2011-2209; Nintendo of America Inc v. Marco Beijen, Beijen Consulting, Pokemon Fan Clubs Org. / Pokemon Fans Unite,WIPO Case No. D2001-1070; BellSouth Intellectual Property Corporation v. Serena, Axel,WIPO Case No. D2006-0007.
Further, the evidence demonstrates that Respondent was using the Domain Name in connection with unauthorized and deceptive activities. Complainant has provided evidence indicating that Respondent is using the Domain Name to divert consumers to a website that imitates Complainant’s website, such as displaying Complainant’s logo, using a layout/design that is similar to Complainant’s official website, and offering Complainant’s products for sale at a discounted price, all without any authorization or approval by Complainant. As noted above, Respondent’s website further displays text that creates the impression that Respondent has ownership rights in the LK BENNETT mark. The text on Respondent’s website further provides references to brands such as Luis Vuitton, Superdry, Ted Baker, etc., which are competitive to Complainant’s goods and services. By doing so, the Domain Name is used to mislead consumers into thinking that the website is endorsed by Complainant offering products for sale at a discounted price. Potential customers are also encouraged to create an account on Respondent’s website where sensitive information may be collected.
Therefore, Respondent, by using the Domain Name, has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with Complainant’s LK BENNETT mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location. Such use of the Domain Name may also result in tarnishing Complainant’s reputation and affecting its business activities.
Here, the present circumstances, including the distinctiveness and reputation of the LK BENNETT marks, the unauthorized and deceptive use of Domain Name to divert consumers looking for authentic LK BENNETT goods and services to Respondent’s website, the failure of Respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, and the implausibility of any good faith use to which the Domain Name may be put, support a finding of bad faith. See section 3.3 of the WIPO Overview 3.0.
Accordingly, the Panel finds that Respondent has registered and is using the Domain Name in bad faith and Complainant succeeds under the third element of paragraph 4(a) 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 Domain Name
Kimberley Chen Nobles
Sole Panelist
Date: November 18, 2021