Westmore · UDRP DecisionIsabelmarantfrancemagasin.com
The Panel ordered transfer of <isabelmarantfrancemagasin.com>. It found the domain confusingly similar to the Complainant’s ISABEL MARANT trademark because it incorporated the mark in full and merely added the descriptive French words “france” and “magasin.” The Respondent had no authorization, licence, demonstrated bona fide use, evidence of being commonly known by the domain, or legitimate noncommercial or fair use. The Panel further found that the Respondent intentionally used the domain to attract Internet users for commercial gain by creating confusion with the ISABEL MARANT mark, constituting bad faith under paragraph 4(b)(iv) of the Policy.
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The decision illustrates a straightforward Policy paragraph 4(b)(iv) fact pattern in which a fashion trademark was incorporated in full with descriptive geographic and retail terminology, while the resulting domain was used for a website offering purported branded products. The absence of relationship disclosure, authorization, and rebuttal supported findings against bona fide use and in favor of intentional commercial confusion.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION IM Production v. Jing Dian Case No. D2013-2044 1. The Parties The Complainant is IM Production of Paris, France, represented by Cabinet Vittoz, France. The Respondent is Jing Dian of Qingdao, Shandong, China. 2. The Domain Name and Registrar The disputed domain name <isabelmarantfrancemagasin.com> (the “Disputed Domain Name”) is registered with GoDaddy.com, LLC. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 27, 2013. On November 28, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On December 2, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a request by the Center for clarification of the Complaint, the Complainant filed an amendment to the Complaint on December 6, 2013. 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 December 11, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was December 31, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 3, 2013. The Center appointed Michael D. Cover as the sole panelist in this matter on January 13, 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 a French company, IM Production, with its headquarters in Paris, France. The Complainant is a fashion company that owns and uses the trademark ISABEL MARANT for shoes, ready to wear, jewellery and couture collections. The Complainant’s business was founded by designer Isabel Marant, and the trademark ISABEL MARANT has been in use all over the world since 1991. The trademark ISABEL MARANT is registered in many countries throughout the world. The Respondent is listed in the WhoIs entry as Jing Dian of Qingdao, Shandong, China. The Disputed Domain Name was registered on September 24, 2013. 5. Parties’ Contentions A. Complainant The Complainant submits that it is the owner of many registered trademarks throughout the world consisting of or including the words “Isabel Marant” and is the owner of many domain names also consisting of or including those words. The Complainant also points out the trademark is the name of the designer who is also the president of the Complainant. Identical of Confusingly Similar The Complainant points out that the Disputed Domain Name combines the words “Isabel Marant”, which are identical both to the Complainant’s trademark and the name of the president of the Complainant, with the French words “france” and “magasin”, which are both commonly-used and understood words in the fashion business. It submits that the Disputed Domain Name incorporates the Complainant’s trademark in its entirety and that the Disputed Domain Name is confusingly similar to its trademark, despite the addition of such words. The Complainant relies on the case of Roche Therapeutics Inc. v. Venkateshwara Distributor Private Limited PrivacyProtect.org, WIPO Case No. D2010-1391 . Rights or Legitimate Interests The Complainant sets out that the Respondent was never authorized to registered a domain name containing the trademark ISABEL MARANT and that the Respondent has not been granted a licence or other rights to use the Complainant’s trademark ISABEL MARANT nor is the Respondent in any way associated or affiliated with the Complainant. The Complainant submits that the Respondent is not commonly known by the Disputed Domain Name, which was registered relatively recently and well after the establishment by the Complainant of its rights in the trademark ISABEL MARANT, and, to the Complainant’s knowledge, the Respondent has never conducted legitimate business under the disputed domain name <isablemarantfrancemagasin.com>. The Complainant states that, at the time of preparing and filing the Complaint, the Disputed Domain Name resolved to a website that was being used to offer counterfeit ISABEL MARANT products at very low prices. Registered and Used in Bad Faith The Complainant submits that the Respondent has deliberately registered and used the Disputed Domain Name to attract Internet users to the above website for financial gain, by creating confusion with the Complainant’s trademark. The Complainant also draws the Panel’s attention to the case of Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 , in which it was found that a passive holding can constitute a domain name being used in bad faith. Remedies Requested The Complainant requests that the Disputed Domain Name be transferred to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Complainant is required to demonstrate on the balance of probabilities that the Dispute Domain Name is identical or confusingly similar to its trademark ISABEL MARANT in which it has rights, that the Respondent has no rights or legitimate interests in the Disputed Domain Name and that the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel accepts that the Complainant has rights in its trademark ISABEL MARANT. It has extensive registered trademarks around the world consisting of or including the words “Isabel Marant” and has also built up rights through use since the early/mid nineteen nineties. The Panel also accepts the submissions of the Complainant that the Disputed Domain Name is confusingly similar to the trademark ISABEL MARANT in which it has rights. The main and indeed initial component of the Disputed Domain Name is comprised of the words “Isabel Marant”, which are the trademark of the Complainant and that trademark has been incorporated into the Disputed Domain Name in its entirety. The addition of the descriptive words “france” and “magasin” (the latter meaning “shop” in English) does not change this. The Panel accepts that these are words which are likely commonly to be used in the fashion business. It has been the consensus view of previous UDRP panels that the mere addition of such descriptive words or indeed the suffix “.com” is insufficient to avoid a finding of confusing similarity. B. Rights or Legitimate Interests The Panel accepts that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The Respondent has not been authorized or licensed by the Complainant to use its trademark ISABEL MARANT in the Disputed Domain Name. There is no evidence to suggest that the Respondent has, before notice of the dispute, made demonstrable preparations to use the Disputed Domain Name in connection with a bona fide offering of goods or services. The Panel finds that, on the balance of probabilities, and on the evidence of the Complainant, that such use that has taken place has not been bona fide . In particular, the Panel notes that the Disputed Domain Name has been used for a website which offered purported ISABEL MARANT products at very low prices, and which contained no explanation regarding the (lack of a) relationship between the Respondent and the Complainant. There is also no evidence to suggest that that the Respondent has been commonly known by the Disputed Domain Name nor that it has made legitimate, noncommercial or fair use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the reputation of the Complainant’s trademark ISABEL MARANT. The evidence of the Complainant already set out in this Decision points strongly in the opposite direction. C. Registered and Used in Bad Faith The Panel accepts the submissions of the Complainant the Disputed Domain Name has been registered and is being used in bad faith and has no need to look further as to whether passive holding of a domain name can meet the requirements of this part of the UDRP. The Panel finds that, on the balance of probabilities, the Respondent has intentionally attempted to attract for commercial gain Internet users to the website to which the Disputed Domain Name resolved and that this was by creating a likelihood of confusion with the Complainant’s trade mark ISABEL MARANT. This constitutes bad faith registration and use pursuant to paragraph 4(b)(iv) of the Policy. 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 <isabelmarantfrancemagasin.com> be transferred to the Complainant. Michael D. Cover Sole Panelist Date: January 27, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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