The Complainant “Dr. Martens” International Trading GmbH of Gräfelfing, Germany, and “Dr. Maertens” Marketing GmbH of Seeshaupt, Germany, represented by Beetz & Partner, Germany.
The Respondent is Hessamaldin Varposjty of Tehran, Islamic Republic of Iran. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with IRNIC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 23, 2013. On July 23, 2013, the Center transmitted by email to IRNIC a request for registrar verification in connection with the Domain Name. On July 27, 2013, IRNIC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. A hard copy of the Complaint was received by the Center on August 15, 2013.
The Center verified that the Complaint satisfied the formal requirements of the “.ir” Domain Name Dispute Resolution Policy (the “Policy” or “irDRP”), the Rules for “.ir” Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for “.ir” 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 August 20, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was September 9, 2013. The Respondent did not submit any response. On September 10, 2013, the Center notified the Respondent’s default.
The Center appointed Dawn Osborne as the sole panelist in this matter on September 20, 2013. 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’s trade mark DR. MARTENS is registered as a Community Trade Mark and in Australia, Canada, the United States of America and in various other countries using the Madrid Protocol and has been in use since the 1950s.
The Respondent has been using the Domain Name as a parked website for links to unauthorized websites selling Dr. Martens products, but also footwear of third parties not connected with the Complainant.
The Domain Name was created on March 26, 2013. 5. Parties’ Contentions A. Complainant
The submissions of the Complainant can be summarised as follows:
The Complainant’s trade mark DR. MARTENS is registered as a Community Trade Mark and in Australia, Canada, the United States of America and in various other countries using the Madrid Protocol and has been in use since the 1950s.
The Respondent has been using the Domain Name as a parked website for links to unauthorized websites selling Dr. Martens products, but also footwear of third parties not connected with the Complainant.
The Domain Name is identical to the Complainant’s trade mark for the purposes of the Policy.
The Respondent has no rights or legitimate interests in the DR. MARTENS trade mark. He has never been authorised by the Complainant.
The Respondent has been using the Domain Name as a parked website for links to unauthorized websites selling Dr. Martens products, but also footwear of third parties not connected with the Complainant. He must have been aware of the Complainant and its rights when registering the Domain Name. The use of the Domain Name makes a false representation that the Respondent or his website has a sponsorship, approval or association with the Complainant or its licensees/customers and this causes confusion as to the identity behind the website attached to the Domain Name. Customers will believe the website is connected with the Complainant. This use takes unfair advantage and is detrimental to the Complainant’s earlier rights and makes illegitimate use of the Domain Name for commercial gain which will tarnish the Complainant’s trade mark due to confusion as to the source or affiliation of the Respondent’s website on the one hand and the Complainant and its trade mark on the other. He has no right to include the Complainant’s trade mark in the Domain Name. He is more than likely profiting from the goodwill of the Complainant’s trade mark by accruing click through fees for each confused customer. The Domain Name was registered and used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered or is being used in bad faith. A. Identical or confusing similarity
The Complainant has a Community Trade Mark registration and trade mark registrations for DR. MARTENS in, inter alia, Australia, Canada and the United States of America with use going back to the 1950s. The Domain Name consists of the Complainant’s DR. MARTENS registered trade mark (except for the “.”) and the country code Top-Level Domain “.ir” which may be ignored for the purposes of the Policy. The distinctive part of the Domain Name is the DR. MARTENS mark. As such the Panel holds that the Domain Name is essentially identical to a trade mark in which the Complainant has rights for the purpose of the Policy. B. Rights or Legitimate Interest of the Respondent
The Respondent has not filed a Response. He has no consent from the Complainant, has not used the Domain Name for a bona fide offering of goods and services given its confusing use, as discussed below, and is not commonly known by the Domain Name. Nor is he making noncommercial fair use of it. In the circumstances of this case, and in view of the Panel’s discussion below, the Panel finds that the second element of the Policy has been established. C. Registered or Used in Bad Faith
Paragraph 4(b) of the Policy sets out four non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including:
By using the domain name [the Respondent] has intentionally attempted to attract, for commercial gain, Internet users to his website or other location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of his website or location or of a product or service on his website or location.
It is noted that the Policy only requires the Complainant to demonstrate registration or use of the Domain Name in bad faith. The Respondent has not provided any explanation why he would be entitled to register a domain name equivalent to the Complainant’s trade mark in the “.ir” country code Top-Level Domain. The use of the trade mark on the website and offering of Dr. Martens products shows that the Respondent is well aware of the Complainant, its trade mark and goods. The website has been used for advertisement links to third party products and to promote products directly competing with those of the Complainant, but not connected to the Complainant. In the absence of a Response from the Respondent, considering the fame of the Complainant and the material attached to the Domain Name, the Panel is satisfied that the Complainant has shown that the Respondent both registered the Domain Name in bad faith and has used the Domain Name to attract Internet traffic to his website for commercial gain by creating a likelihood of confusion that his website is connected to the Complainant, also in bad faith. As such the Panel finds that the Domain Name has been registered and used in bad faith. This more than satisfies the third limb of the Policy which only requires registration or use of the Domain Name in bad faith. 7. Decision
For the foregoing reasons, the Panel orders that the Domain Name be transferred to the Complainant.
Dawn Osborne
Sole Panelist
Date: October 9, 2013
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