The Complainant is Gibson Brands, Inc., United States of America, (“United States”) represented by Bates & Bates LLC, United States.
The Respondent is Withheld for Privacy ehf / I y, China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 22, 2021. On October 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 22, 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 27, 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 29, 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 November 8, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 28, 2021. The Respondent did not submit any formal response. On November 12, 2021 and November 16, 2021, the Respondent contacted the Center and expressed its interest to terminate the proceeding. However, no settlement was reached between the Parties.
The Center appointed Dawn Osborne as the sole panelist in this matter on December 14, 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.
The Complainant is the owner of the trade mark GIBSON, registered, inter alia, in the United States as trade mark registration number 0866698 for guitars since 1969 with first use in commerce recorded as 1942.
The Domain Name registered in 2021 has been used for a web site offering competing products under the Complainant’s mark and logo used as a masthead mimicking the Complainant’s web site such that said web site appears to be an official site of the Complainant when it is not.
5. Parties’ Contentions A. ComplainantThe Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the trade mark GIBSON, registered, inter alia, in the United States as trade mark registration number 0866698 for guitars since 1969 with first use in commerce recorded as 1942.
The Domain Name registered in 2021 is identical for the purposes of the Policy to the Complainant’s trade mark containing it in its entirety adding only the generic Top Level Domain (‘gTLD’) .com.
The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Respondent has been using the Domain Name to offer competing products using the mark and logo of the Complainant as a masthead mimicking the Complainant’s web site and taking advantage of the goodwill of the Complainant. This is not a bona fide offering of goods or services or legitimate non commercial or fair use. It is registration and use in bad faith impersonating the Complainant taking advantage of its goodwill, disrupting its business and diverting and causing confusion amongst Internet users for commercial gain.
B. RespondentThe Respondent did not formally reply to the Complainant’s contentions. On November 12, 2021 and November 16, 2021, the Respondent contacted the Center and expressed its interest to terminate the proceeding. However, no settlement was reached between the Parties.
6. Discussion and Findings A. Identical or Confusingly SimilarThe Domain Name consists of the Complainant’s famous GIBSON trade mark (registered, inter alia, as a trade mark in the United States for guitars since 1969) and the gTLD “.sale”.
The gTLD “.sale” does not distinguish the Domain Name from the Complainant’s trade mark, which is the distinctive component of the Domain Name.
Accordingly, the Panel holds that the Domain Name is identical for the purpose of the Policy to a trade mark in which the Complainant has rights.
B. Rights or Legitimate InterestsThe Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence that the Respondent is, in fact, commonly known by the Domain Name. The use made of the Domain Name is commercial and so is not legitimate non-commercial fair use.
The web site attached to the Domain Name uses the Complainant’s mark and its logo as a masthead and mimics the Complainant’s web site to offer competing products. It does not make it clear that there is no commercial connection between the site attached to the Domain Name and the Complainant and the web site appears official. The Panel finds this use is confusing. As such it does not amount to the bona fide offering of goods and services. The Respondent has not answered this Complaint or given any explanation.
As such the Panelist finds that the Complainant has proven that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
C. Registered and Used in Bad FaithThe use made of the Domain Name in relation to the Respondent’s site is confusing purporting to offer guitars using the Complainant’s mark and logo as a masthead mimicking the Complainant’s web site and giving the impression that the site attached to the Domain Name is an official site of the Complainant when it is not. The use of the Complainant’s logo by the Respondent shows the Respondent had actual knowledge of the Complainant, its rights, business and goods.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its web site by creating a likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship, affiliation or endorsement of the web site attached to the Domain Name and services or products offered on it likely to disrupt the business of the Complainant.
As such, the Panel believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb 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
Dawn Osborne
Sole Panelist
Date: December 17, 2021