Complainant is Calvin Klein Inc., United States of America (“United States”), and Calvin Klein Trademark Trust, United States (hereinafter, jointly and severally, “Complainant”), represented by Kestenberg Siegal Lipkus LLP, Canada.
Respondent is Rut Albert, United States (hereinafter, “Respondent”).
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 29, 2021. On October 29, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 2, 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 Complainant on November 5, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on November 5, 2021.
The Center verified that the Complaint together with the amended Complaint (hereinafter, 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 of the Complaint, and the proceedings commenced on November 22, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 12, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 14, 2021.
The Center appointed M. Scott Donahey as the sole panelist in this matter on December 22, 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 is the registered owner of the CALVIN KLEIN trademarks, which Complainant has used continuously in the United States since as early as 1968. Complaint, Annex C. Complainant has used and registered the CALVIN KLEIN trademarks in the United States and in countries around the world. The registrations of the CALVIN KLEIN trademarks in the United States date back as early as February 21, 1978. Complaint, Annex D.
Complainant also has registered a number of domain names, including
Complainant sells its products under the Calvin Klein marks exclusively through retail outlets under the CALVIN KLEIN marks and name, and through specialty stores such as Neiman Marcus, Saks Fifth Avenue, and Bergdorf Goodman. Complaint, Annex C.
Respondent registered the disputed domain name on September 17, 2021. Complaint, Annex B. Respondent initially used the disputed domain name to resolve to a website with pornographic content and the disputed domain name now resolves to an inactive site. Complaint, Annexes A, C, and V.
5. Parties’ Contentions A. ComplainantComplainant asserts that the disputed domain name is confusingly similar to Complainant’s CALVIN KLEIN trademark. Complainant alleges that Respondent has no right or legitimate interest in respect of the disputed domain name. Complainant contends that Respondent has registered and is using the disputed domain name in bad faith.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and Findings“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and,
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and,
(iii) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe disputed domain name consists of Complainant’s well-known trademark and the Spanish word “bragas,” which corresponds to the English word “panties.” As Complainant’s trademark is clearly recognizable in the domain name, there is no question that the disputed domain name is confusingly similar to Complainant’s CALVIN KLEIN trademark, and the Panel so finds.
B. Rights or Legitimate InterestsWhile the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the almost impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad FaithRespondent registered a domain name consisting of the well-known CALVIN KLEIN trademark and the Spanish word for “panties.” Respondent initially used the disputed domain name to resolve to a website containing pornographic materials. Respondent now uses it to resolve to an inactive page. In both cases a user believing he or she is using the disputed domain name to access a website created by and pertaining to Complainant. In either case, the user is expecting to reach a site belonging to Complainant. Accordingly, the Panel finds that Respondent has registered and is using the disputed domain name 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,
M. Scott Donahey
Sole Panelist
Date: December 30, 2021