The Complainant is Sneakersnstuff AB, Sweden, represented by Advokatfirman Vinge KB, Sweden.
The Respondent is Sneaker Games LLC, United States of America (“United States”) / DONG LI, Hong Kong, China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 30, 2021. On September 30, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On October 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 Complainant on October 4, 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 on October 5, 2021.
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 October 8, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 28, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 29, 2021.
The Center appointed Nick J. Gardner as the sole panelist in this matter on November 5, 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 BackgroundThe Complainant is a Swedish company which sells a range of footwear and other apparel in various countries around the world under the brand name “Sneakersnstuff”. Its business started in 1999 and it owns various trademarks for the word “Sneakersnstuff” including for example European Union trademark 0177644774 registered April 27, 2018. These trademarks are referred to in this decision as the “SNEAKERSNSTUFF trademark”.
The Complaint’s principal website is linked to the domain name
The Disputed Domain Name was registered on March 26, 2021. It is linked to a website (the “Respondent’s Website”) which clearly deliberately gives the impression it is a genuine website of the Complainant. It reproduces copyright material from the Complainant’s website and displays the name “sneakeralchstuff” and/or the logo “alch” in a stylised form which imitates how the Complainant presents its name and/or its logo “sns” on its website. It offers for sale footwear and apparel.
5. Parties’ Contentions A. ComplainantThe Complainant’s case can be summarized as follows.
a) The Disputed Domain Name is confusingly similar to the SNEAKERSNSTUFF trademark.
b) The Respondent does not have any rights or legitimate interests in the Disputed Domain Name.
c) The Respondent has registered and used the Disputed Domain Name in bad faith. The Complainant says the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by use of domain name confusingly similar to the Complainant’s SNEAKERSNSTUFF trademark. It says the Respondent has unfairly tried to take advantage of the SNEAKERSNSTUFF trademark.
B. RespondentNo Response has been filed.
6. Discussion and Findings 6.1. Preliminary MattersThe Panel notes that no communication has been received from the Respondent. However, given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar, then the Panel considers that this satisfies the requirement in paragraph 2(a) of the Rules to “employ reasonably available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent’s failure to file any Response. While the Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see, e.g., Verner Panton Design v. Fontana di Luce Corp,WIPO Case No. D2012-1909).
6.2. Substantive MattersParagraph 4(a) of the Policy states that the Complainant must prove each of the three following elements in respect of the Disputed Domain Name:
(i) the Disputed Domain Name is identical to 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 the Disputed Domain Name;
(iii) the Disputed Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Panel finds that the Complainant has rights in the SNEAKERSNSTUFF trademark.
The Panel finds the Disputed Domain Name is confusingly similar to the SNEAKERSNSTUFF trademark. Previous UDRP panels have consistently held that domain names are identical or confusingly similar to a trademark for purposes of the Policy “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name” (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662). It is established that, where a mark is recognizable in a disputed domain name, the disputed domain name is considered to be confusingly similar to the registered mark (see section 1.8 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). In the present case, the Disputed Domain Name combines the words “sneaker” and “stuff” (the two main elements of the SNEAKERSNSTUFF trademark being “SNEAKERS” and “STUFF”) with an apparently meaningless term “alch”. The Panel finds that a dominant feature of the SNEAKERSNSTUFF trademark is recognizable in the Disputed Domain Name (see section 1.7 of WIPO Overview 3.0).
It is well established that the generic Top-Level Domain (“gTLD”), in this case “.com”, does not affect the Disputed Domain Name for the purpose of determining whether it is identical or confusingly similar. See, for example, Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429.
While UDRP panels typically do not refer to the content of the website under the first element, in this case the Respondent’s Website clearly targets the Complainant’s SNEAKERSNSTUFF trademark and products, which affirms the confusing similarity. See section 1.15 of WIPO WIPO Overview 3.0.
Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark and hence the first condition of paragraph 4(a) of the Policy has been fulfilled.
B. Rights or Legitimate InterestsParagraph 4(c) of the Policy non-exhaustively lists three circumstances that demonstrate a right or legitimate interest in a domain name:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business or other organisation) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
None of these apply in the present circumstances. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the SNEAKERSNSTUFF trademark. The Complainant has prior rights in the SNEAKERSNSTUFF trademark which precede the Respondent’s registration of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce relevant evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see for example Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Panel finds that the Respondent has failed to produce any evidence to establish any rights or legitimate interests in the Disputed Domain Name. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled.
C. Registered and Used in Bad FaithIn the present circumstances, the Panel concludes that the Respondent chose to register a name confusingly similar to the Complainant’s SNEAKERSNSTUFF trademark in order to facilitate a business where the Respondent’s Website could offer for sale goods which compete with those the Complainant sells.
Under paragraph 4(b) of the Policy a non-exhaustive list of factors evidencing registration and use in bad faith comprises:
“(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 web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
In the present circumstances the Panel agrees with the Complainant that factor (iv) applies as the Respondent was seeking to attract customers by creating a likelihood of confusion with the Complainant's SNEAKERSNSTUFF trademark. The Respondent’s Website masquerades as a website operated by or with the authority of the Complainant when that is not the case. The Disputed Domain Name is clearly intended to assist in that deception. The Panel also notes that the Respondent has not filed a Response and hence has not availed itself of the opportunity to present any case of good faith that it might have.
Accordingly, the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith and the third condition of paragraph 4(a) of the Policy has been fulfilled.
7. DecisionFor all the foregoing reasons, in accordance with paragraphs 4 of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name,
Nick J. Gardner
Sole Panelist
Date: November 19, 2021