The Complainant is Boozt Fashion AB, Sweden, represented by Setterwalls Advokatbyra, Sweden.
The Respondent is Ralf Hoch, Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with 1API GmbH (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 21, 2019. On August 21, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 22, 2019, 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 August 22, 2019 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 amended Complaint on August 23, 2019.
The Center verified that the Complaint together with the amended 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 August 23, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 12, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 18, 2019.
The Center appointed Charles Gielen as the sole panelist in this matter on October 1, 2019. 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 one of the biggest retailers of among other clothing, shoes and accessories through online shopping in northern Europe. The Complainant owns numerous trademark registrations for BOOZT, such as European Union Trademark registration No. 9959198, registered on October 6, 2011 for goods in classes 14 and 25 and services in class 35 and European Trademark registration No. 014764393, registered on August 31, 2017 for goods in classes 9 and 18 and services in class 35. Furthermore, since February 10, 2006, the Complainant holds the domain name incorporating the trademark BOOZT.
The disputed domain name was created on February 18, 2017, and leads to an online store that displays the trademark BOOZT of the Complainant in connection with sales of shoes. 5. Parties’ Contentions A. Complainant
The Complainant contends it is one of the biggest retailers of clothes, shoes and accessories through online shopping in northern Europe. The trademark BOOZT has been extensively used for sale of clothes, shoes and related goods and services since the start of the online store opening in 2009. Furthermore, the Complainant uses the tradename Boozt Fashion AB since November 25, 2015. The Complainant argues that the trademark enjoys considerable reputation on substantial parts of the European Union (“EU”) market and is associated with services of high quality. The investments in the Complainant’s business have resulted in great popularity and a substantial goodwill associated with the trademark and tradename BOOZT. On Facebook, the website of the Complainant has almost 240,000 likes and followers and on Instagram this website has almost 28,000 followers.
The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s trademark, since the disputed domain name reproduces the trademark BOOZT in its entirety.
Furthermore, the Complainant contends that the Respondent does not have any rights or legitimate interests in the disputed domain name. The Complainant gives the following reasons for this. Firstly, the disputed domain name was created more than five years after the first registration of the trademark BOOZT. Secondly, the Respondent does not have any affiliation, association, sponsorship or a connection in any other way with the Complainant. The Complainant has not licensed, authorized or otherwise permitted the Respondent to use the trademark BOOZT or to apply for any domain name that incorporates the trademark BOOZT. Thirdly, the disputed domain name is neither used in connection with a bona fide offering of goods and services nor in a legitimate noncommercial or fair way and the Respondent is not commonly known by the disputed domain name. Fifthly, the term “boozt” does not have any meaning in relation to the goods sold, and there is consequentially no legitimate interest for the Respondent to use the trademark BOOZT. Sixthly, as the Complainant’s trademark enjoys considerable reputation on substantial parts of the EU market, including Denmark, the Respondent’s use of the Complainant’s trademark is misleading and creates confusion as of the origin of the goods in question. The Respondent must therefore have registered the disputed domain name with the intent to, for commercial gain, misleadingly divert consumers to its website by using a domain name that is confusingly similar to the Complainant’s trademark.
Finally, the Complainant argues that the Respondent registered and is using the disputed domain name in bad faith. The Complainant first contends that, given the Complainant’s extensive use of the trademark BOOZT, and its popularity on social media, the Respondent must have been aware of the Complainant’s trademark rights when registering the disputed domain name. Secondly, the Complainant argues that the registration and use of the disputed domain name is made in bad faith because the Respondent sells products on its website in direct competition with those of the Complainant and it can therefore be presumed that the Respondent commercially benefits from the Complainant’s trademark and established market position. Thirdly, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant proves that it has rights in the trademark BOOZT based on numerous trademark registrations. The term “boozt” in the disputed domain name is identical to this trademark. The added suffix “.cc” does not change the finding that the disputed domain name is confusingly similar, since the “.cc” suffix is understood to be a technical requirement. In making the comparison between the trademark and the disputed domain name, the country code Top-Level Domain (“ccTLD”), such as “.cc” is disregarded. The Panel is of the opinion that applying these principles to this case, the disputed domain name is identical similar to the trademark.
Therefore, the requirement under paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests
The Panel is of the opinion that the Complainant made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The first reason is that the Complainant’s trademark is not a term one would choose as a domain name without having specific reasons to choose such a term and this word certainly is not a descriptive term serving to indicate specific characteristics of the products offered for sale by the Respondent on its website. Furthermore, the disputed domain name was registered after the Complainant started to use and registered the trademark BOOZT. The Panel is convinced that the term “boozt” in the disputed domain name has no other meaning except to refer to the Complainant and its businesses, which is proven by the fact that the Respondent, on the website to which the disputed domain name resolves, also sells shoes. The Respondent must have been aware of the prior existence of this trademark, which is also proven by the fact that the Respondent's website is in the Danish language and the Complainant operates in the Nordic countries. Finally, the Respondent has not come forward claiming any rights or legitimate interests and the Panel does not find so in the present record.
In view of the aforementioned, the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is met. C. Registered and Used in Bad Faith
The Panel is of the opinion that the disputed domain name was registered and is being used in bad faith.
The main reasons for this conclusion are as follows. It is obvious that the intention of the Respondent is to mislead consumers in believing that the disputed domain name is in one way or the other connected to the Complainant and its business. The Respondent is undoubtedly trying to attract, for commercial gain, Internet users and consumers by creating a likelihood of confusion with the Complainant and its business. This intention follows from the fact that the disputed domain name is identical to the earlier trademark of the Complainant and is being used for identical goods, namely shoes and that both the Complainant and the Respondent are operating in the same geographical area. The Respondent has never been licensed or otherwise authorized to use the trademark of the Complainant. The Panel finds that registration and use of the disputed domain name as described in this decision constitutes bad faith under the Policy.
The Panel therefore considers the requirement of paragraph 4(a)(iii) of the Policy to be met. 7. Decision
For 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.
Charles Gielen
Sole Panelist
Date: October 9, 2019
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