The Complainant is Red Diamond Holding Sarl of Luxembourg, represented by Nameshield, France.
The Respondent is Santino, Enrico Rodolfo / Schiffer Vanessa, United Domains Management LLC of Munich, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with TPP Wholesale Pty Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 26, 2016. On May 26, 2016, the Center transmitted by email to TPP Wholesale Pty Ltd a request for registrar verification in connection with the disputed domain name. On June 3, 2016, TPP Wholesale Pty Ltd transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the .au Dispute Resolution Policy (the “Policy” or “.auDRP”), the Rules for .au Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 3, 2016. In accordance with the Rules, paragraph 5(a), the due date for Response was June 23, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 27, 2016.
The Center appointed David Stone as the sole panelist in this matter on July 6, 2016. 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
The Complainant is a large clothing company which licenses the sale of a range of clothes, including denim jeans, worldwide under various brands including LEE COOPER. The Complainant owns several trademarks for the term LEE COOPER, including an International trademark with registration number 1127681, registered on February 22, 2012.
The Complainant is the owner of the domain name . The Respondent registered the disputed domain name on February 17, 2016. The website to which the disputed domain name resolves contains several hyperlinks, some of which contain the elements of the LEE COOPER trademark in the context of denim clothing; for example, “Lee Cooper jeans”, “Cooper jeans” and “Lee denim”. 5. Parties’ Contentions A. Complainant
The Complainant submits that the disputed domain name is identical to the trademark LEE COOPER, and that the country-code Top-Level Domain (“ccTLD”) extension “.” does not affect this finding or change the overall impression of the designation as being connected to the trademark of the Complainant.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name . There is no similarity between the Respondent’s name and the disputed domain name, and the Complainant does not carry out any activity for, or have business with, the Respondent. Neither a licence nor authorisation has been granted to the Respondent to make any use of the Complainant’s trademarks. The Respondent has not responded to the Complainant’s request for an explanation as to why the disputed domain name was registered.
The Complainant further submits that the Respondent has registered the disputed domain name in bad faith. The disputed domain name resolves to a website which contains commercial hyperlinks which relate to both the Complainant’s trademark and the field of the Complainant’s business. The Complainant argues that the Respondent is using the disputed domain name to attract intentionally, for commercial gain, Internet users to the website by creating a likelihood of confusion with the Complainant's trademarks. The disputed domain name is also offered for sale. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) the disputed domain name is identical or confusingly similar to a name, trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered or subsequently used in bad faith. A. Identical or Confusingly Similar
The Complainant has shown that it owns an International registered trademark for LEE COOPER, which pre-dates the Respondent’s registration of the disputed domain name.
The Panel notes that the disputed domain name includes in its entirety the Complainant’s trademark, and that the disputed domain name is identical to the trademark. The ccTLD extension “.” does not affect this finding or change the overall impression of the designation as being connected to the trademark of the Complainant.
The Panel therefore finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out the criteria which determine whether a domain name holder has rights or legitimate interests in a domain name, namely if it has demonstrated:
(i) use of, or 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;
(ii) a common association with the disputed domain name, even if it has acquired no trademark or service mark rights; or
(iii) 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.
The Respondent does not appear to run any business activity in connection with the disputed domain name. It can be seen that the disputed domain name is not used by the Respondent in connection with a genuine offering of goods and services; rather, it resolves to a website that lists commercial hyperlinks. The Panel also notes that the disputed domain name is offered for sale. There does not appear to be any connection between the disputed domain name and the name or business of the Respondent, nor does the Respondent have any relationship with the Complainant.
The Complainant has established a presumptive case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not replied to the Complaint and thus has not presented any other evidence or elements to justify any rights or legitimate interests in connection with the disputed domain name.
There is no indication that any of the circumstances described in Paragraph 4(c)(i) – (iii) of the Policy could apply to the present matter. Therefore, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name under paragraph 4(a)(ii) of the Policy. C. Registered or Subsequently Used in Bad Faith
Paragraph 4(b) of the Policy sets out a non-exhaustive criteria for bad faith, for example:
(i) sell, rent, or transfer the disputed domain name to the trademark owner (or a competitor thereof) for a profit;
(ii) prevent the trademark owner from registering its trademark in a domain name;
(iii) disrupt the business of a competitor; or
(iv) divert Internet traffic for commercial gain.
Under the Policy, if any of the domain name proprietor’s representations or warranties as to eligibility or third party rights given on application or renewal are, or subsequently become, false or misleading in any manner, this shall also be used as evidence of bad faith.
The website to which the disputed domain name resolves contains a list of commercial hyperlinks, some of which relate to the clothing industry in which the Complainant operates and make reference to elements of the Complainant’s trademarks. The Panel accepts the Complainant’s submission that the use of the disputed domain name is intended to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the website.
Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith under paragraph 4(a)(iii) of the Policy. 7. Decision
For all 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, , be transferred to the Complainant.
David Stone
Sole Panelist
Date: July 20, 2016
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