The Complainant is H & M Hennes & Mauritz AB of Stockholm, Sweden, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Domain Admin, PrivacyP of Nobby Beach, Australia / Horario Mendoza of Atlántico, Colombia. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 21, 2014. On May 21, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 22, 2014, 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 May 23, 2014 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 May 23, 2014
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 26, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was June 15, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 16, 2014.
The Center appointed Nicolas Ulmer as the sole panelist in this matter on June 18, 2014. 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 part of a large international retail group selling clothes and various accessories in numerous stores around the world.
The Complainant is the proprietor of many trademarks in Europe, North America and elsewhere containing or consisting of variations of H & M. These trademark registrations date from at least 2002.
The disputed domain name was registered in January 2014. 5. Parties’ Contentions A. Complainant
The Complainant maintains that, and submits significant evidence to the effect that, H & M is a very well known global brand, and that it is entirely implausible that the Respondent registered the disputed domain name without knowledge of the brand and the H & M mark. On the contrary, the Complainant asserts that the Respondent can only have registered the disputed domain name with the intent to create and profit from confusion with the Complainant’s valuable and well known brand and H & M trademarks.
The Respondent has no trademark rights or other license from the Complainant, or any other discernible right in the disputed domain name, and has not responded to three demand letters requesting a voluntary transfer of the disputed domain name against a payment of expenses.
It is also clear that the Respondent has both registered and used the disputed domain name in bad faith. This use has included links to an online store selling clothes and bags and a “pay per click” website, which at times used the Complainant’s logo.
The Complainant’s factual and legal contentions are further explored and discussed as necessary in the Findings of Section 6, infra. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complaint correctly points out that the dominant part of the disputed domain name is “hm”, which is also the heart of the Complainant’s trademarks. The ampersand (present in the Complainant’s trademark but absent from the disputed domain name) is not a valid character for the registration of a domain name; indeed, the Complainant submits evidence that it runs its own online store under the domain name . The addition of the suffix “store” does not here diminish the potential confusion engendered by the Respondent’s use of “hm” in the disputed domain name. On the contrary this additional word seems designed to heighten the confusing similarity with the Complainant, as the Complainant’s principal business is the sale of its goods through stores; thus the insertion of the word “store” in the disputed domain name is here a further indication that the use of the letters “hm” by the Respondent was not serendipitous.
It follows from the above that the disputed domain name is confusingly similar to the Complainant’s marks. B. Rights or Legitimate Interests
The Complainant needs to establish at least a prima facie case showing that the Respondent has no rights or legitimate interests in respect of the disputed domain name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. Once such a prima facie case is made, the burden shifts to the Respondent to demonstrate that it has rights or legitimate interests in the disputed domain name. See also, Meizu Technology Co., Ltd v. “osama bin laden”, WIPO Case No. DCO2014-0002; H & M Hennes & Mauritz v. Simon Maufe, Akinsaya Odunayo Emmanuel and Nelson Rivaldo, WIPO Case No. D2014-0225.
In the present case the Complainant has confirmed that it has not authorized the Respondent to use its mark in a domain name or in any other manner.
There is also no evidence before the Panel to suggest that the Respondent is commonly known as “HMstore” or “HM”, or any other evidence or indicia suggesting that the Respondent has any rights in the disputed domain name.
Respondent having failed to answer the Complaint, the Complainant has accordingly met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The evidence here strongly points to both a registration and use in bad faith. It is extremely unlikely that the Respondent registered the disputed domain name without knowledge of the Complainant’s valuable and well-known worldwide brand and trademarks. The evidence submitted demonstrates that the Respondent made use of the disputed domain name in order intentionally to attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant’s trademarks. This foregoing is constitutive of bad faith registration and use under paragraph 4(b)(iv) of the Policy. In the Panel’s view, the Respondent’s failure to answer the Complainant’s cease and desist letters is a further indication of bad faith.
The panel accordingly concludes that the disputed domain name was registered and used in bad faith. 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.
Nicolas Ulmer
Sole panelist
Date: June 24, 2014
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