Westmore · UDRP DecisionMissguided.com
The Panel ordered transfer of <missguided.com>. It found the Domain Name identical to Complainant’s registered MISSGUIDED mark, found no rights or legitimate interests because Respondent did not rebut Complainant’s prima facie case, and found bad-faith registration and use under Policy paragraph 4(b)(iv). The bad-faith finding rested on the fashion-related commercial links, the probability that Respondent had Complainant’s mark in mind when acquiring the Domain Name, and the resulting intentional attraction of Internet users for commercial gain through confusion.
The timeline behind missguided.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind missguided.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates the importance of distinguishing a domain name’s original creation date from a later respondent’s acquisition date. Although <missguided.com> was originally registered before Complainant’s stated trademark rights arose, the Panel focused on Respondent’s possible acquisition beginning in 2012, after those rights existed. The combination of an exact-match domain, fashion-related commercial links, and the absence of a rebuttal supported bad faith under Policy paragraph 4(b)(iv).
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 Debbie Morgan Macao Commercial Offshore Limited / Missguided Limited v. Contact Privacy Inc. Customer 0133356220 / Domain Administrator Case No. D2014-0061 1. The Parties Complainant is Debbie Morgan Macao Commercial Offshore Limited / Missguided Limited of Manchester, United Kingdom of Great Britain and Northern Ireland, represented by Crowell & Moring LLP, Belgium. Respondent is Contact Privacy Inc. Customer 0133356220 of Toronto, Ontario, Canada / Domain Administrator of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar The disputed domain name <missguided.com> (the “Domain Name”) is registered with Tucows Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2014. On January 17, 2014, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. On January 17, 2014, the Registrar transmitted by e-mail to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an e-mail communication to Complainant on January 23, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on February 7, 2014. The Center verified that the Complaint together with the amended Complaint (collectively 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 Respondent of the Complaint, and the proceedings commenced on February 10, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 2, 2014. On February 10, 2014, the Center received an e-mail communication in which it was stated that “LinkZ Internet Services is not the registrant of this domain name”. Respondent did not submit any formal response. Accordingly, the Center informed the Parties on March 5, 2014 about the commencement of the Panel appointment process. The Center appointed Robert A. Badgley as the sole panelist in this matter on March 10, 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 Since 2010, Complainant has used the trademark MISSGUIDED to identify and distinguish Complainant’s fashion clothing merchandise, including apparel, shoes, watches, jewelry, sunglasses, hats, gloves, scarves, purses, luggage, and the like. Complainant holds various trademark registrations, including Community Trademark Registration No. 008946329 (registered September 2, 2010), for the MISSGUIDED mark. Complainant’s Internet presence is currently centered at its main website, accessible at “www.missguided.co.uk”. The Domain Name was first registered in December 2005 by a third party. It is not entirely clear from the record when Respondent first acquired the Domain Name, but the earliest possible date is April 4, 2012. The Domain Name resolves to a very basic website which contains several hyperlinks to other sites under the categories of “Womens Fashion Clothing,” “Ladies Designer Fashion,” “Fashion Boutique Clothing,” and other categories such as “Viagra” and “Weight Loss.” At the top of the web page is the text: “Click here to buy Missguided.com for your website name!” Complainant alleges that it tried to contact Respondent to request a transfer of the Domain Name, but received no response. 5. Parties’ Contentions A. Complainant Complainant asserts that it has satisfied all three elements required for a transfer of the Domain Name under the Policy. The principal factual predicates in aid of Complainant’s case are summarized above. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar There is no dispute that Complainant holds trademark rights in the mark MISSGUIDED, through registration and use since 2010. The Domain Name is identical to that mark. Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied. B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements: (i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable 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; or (ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or (iii) you [Respondent] are making a 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. Respondent has made no attempt to rebut the prima facie allegation that Respondent had no authority to register the Domain Name, and Respondent has not otherwise come forward to assert its bona fides . On this record, the Panel concludes that Respondent has no rights or legitimate interests in respect of the Domain Name. Accordingly, the Panel finds that Policy paragraph 4(a)(ii) is satisfied. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”: (i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or (ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or (iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or (iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. The Panel concludes that Respondent is in bad faith within the meaning of Policy paragraph 4(b)(iv). Given the fact that Complainant’s business is selling fashion clothing and accessories, and given the links to similar wares at Respondent’s site, it is probable that Respondent had Complainant’s MISSGUIDED mark in mind when registering the Domain Name. It is alleged, and not rebutted by Respondent, and is otherwise found by the Panel to be plausible, that Respondent derives commercial benefit from its commercial hyperlinks. Accordingly, the Panel concludes from this record that Respondent intentionally attempted to use the Domain Name to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark. The Panel finds that Policy paragraph 4(a)(iii) is satisfied. 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 Domain Name <missguided.com> be transferred to Complainant. Robert A. Badgley Sole Panelist Date: March 20, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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