Westmore · UDRP DecisionLevioutlet.com
The Panel ordered transfer of <levioutlet.com>. It found the domain confusingly similar to the Complainant’s registered LEVI’S mark, that the Respondent lacked rights or legitimate interests, and that registration and use were in bad faith. The bad-faith finding rested principally on the Respondent’s presumed awareness of the famous and long-used mark and its use of the domain for sponsored links under Policy paragraph 4(b)(iv). The Panel also treated the use of privacy protection services as further evidence of bad faith.
The timeline behind levioutlet.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 levioutlet.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates a straightforward UDRP transfer where a longstanding and famous clothing mark was paired with a retail-related term and used for sponsored links. The case is particularly useful for its application of Policy paragraph 4(b)(iv): links involving the trademark owner and competitors supported an inference that the domain was being used to attract users through trademark confusion for commercial gain.
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 Levi Strauss & Co. v. Domain Admin, Private Registrations AktienGesellschaft / Domain Admin Case No. D2014-1020 1. The Parties The Complainant is Levi Strauss & Co. of San Francisco, California, United States of America (“US”), represented by Kilpatrick Townsend & Stockton LLP,US. The Respondent is Domain Admin, Private Registrations AktienGesellschaft of Kingstown, Saint Vincent and the Grenadines/Domain Admin of Nobby Beach, Queensland, Australia. 2. The Domain Name and Registrar The disputed domain name <levioutlet.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2014. On June 16, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 18, 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 June 19, 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 amended Complaint on June 24, 2014. The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 24, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 14, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 17, 2014. The Center appointed Luiz E. Montaury Pimenta as the sole panelist in this matter on July 31, 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 Levi Strauss & Co. was founded in the 1850’s. It manufactures and sells a variety of clothing products, including its LEVI’S jeans, throughout the world. The Complainant sells its products through retail partners and directly to consumers worldwide, including through its website “www.levi.com”. The Complainant is the registered owner of the following trademarks, registered in the US (the “LEVI’S trademarks”): - LEVI’S, reg. No. 250,265, registered on December 4, 1928 for goods and services in International Class 25; - LEVI’S, reg. No. 581,610, registered on October 27, 1953 for goods and services in International Classes 10, 25 and 26; and - LEVI’S, reg. No. 1,140,011, registered on September 30, 1980 for goods and services in International Class 25. The disputed domain name was registered on October 9, 2002. It currently resolves to a website with sponsored links to the Complainant and its competitors. 5. Parties’ Contentions A. Complainant The Complainant alleges it has been continuously using its LEVI’S trademarks for over a century. The Complainant contends that the Respondent knowingly appropriated the Complainant’s trademarks, without any conceivable legitimate interests or rights over it. The Complainant submits that the disputed domain name is confusingly similar to the LEVI’S trademarks. The Complainant alleges that the disputed domain name is formed by a combination of the element “levi” (a reproduction of the LEVI’S trademark in the singular form), which is identical to the LEVI’S trademarks, and the generic term “outlet”. The Complainant contends that the likelihood of confusion between its trademark and the disputed domain name is not eliminated by the addition of terms, and that it actually increases the likelihood of confusion. According to the Complainant, the Respondent has no rights or legitimate interests in the disputed domain names. The Complainant has never authorized the Respondent to use the LEVI’S trademarks or trade name. The Respondent has never been known by the disputed domain name. The WhoIs entries for the disputed domain name identify “Domain Admin” as the registrant. The Respondent is not using the disputed domain name for a bona fide offering of goods or services. Instead, the Respondent has registered the disputed domain name to passively hold it and to divert consumers seeking the Complainant’s goods. The Respondent’s use of the disputed domain name is not legitimate, noncommercial or fair. Rather, the Respondent’s objective is to mislead and divert online customers and to prevent the Complainant from interacting with consumers seeking the Complainant’s goods. The Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith. The Respondent has knowingly reproduced the Complainant’s famous LEVI’S trademark to create confusion and has passively held the disputed domain name. The Complainant also contends that the use of privacy protection services amounts to additional evidence of bad faith registration and use. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Pursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name: (i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) That the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) That the Respondent has registered and is using the disputed domain name in bad faith. A. Identical or Confusingly Similar The Complainant has provided evidence and has thus established its rights in the LEVI’S trademarks, registered in the US. The addition of generic terms does not escape a finding of confusing similarity. The Panel finds that the disputed domain name is confusingly similar to the Complainant’s LEVI’s trademark. B. Rights or Legitimate Interests The Policy requires the Complainant to make at least a prima facie showing that the Respondent has no rights or legitimate interests in the disputed domain name. Once the Complainant makes such a showing, the Respondent may provide evidence to demonstrate that it has rights or legitimate interests in the disputed domain name. The burden of proof, however, always remains on the Complainant to establish that the Respondent lacks rights or legitimate interests in the disputed domain name. See paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”). The Complainant has alleged that the Respondent has no rights or legitimate interests in the disputed domain name with respect to the LEVI’s trademark. With respect to paragraph 4(c)(i) of the Policy, there is no evidence that the Respondent, before any notice of the dispute, used the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. With respect to paragraph 4(c)(ii) of the Policy, there is no evidence that indicates that the Respondent has ever been commonly known by the disputed domain name. With respect to 4(c)(iii) of the Policy, the Respondent has not made or is not making a legitimate noncommercial or fair use of the disputed domain name. In view of the above, the Panel finds that the Complainant has established the second condition of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith The Panel finds that the Respondent has intentionally registered the disputed domain name which reproduces the Complainant’s famous trademark LEVI’S. By the time the disputed domain name was registered, it was highly unlikely that the Respondent did not know of the Complainant’s rights in the trademark LEVI’S. The Complainant’s allegations of bad faith were not contested since the Respondent did not reply to the Complaint. The evidence provided by the Complainant confirms that it had long been using its LEVI’s trademark when the disputed domain name was registered, including in domain names highly similar to the disputed domain name. The Panel finds that the Respondent must have been aware of the Complainant’s trademark when it registered the disputed domain name. Also, under the Policy, it is evidence of bad faith that “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement or your web site or location of a product or service on you web-site or location”, Policy paragraph 4(b)(iv). In the Panel’s opinion, the Respondent’s conduct falls under the circumstances of paragraph 4(b)(iv) of the Policy. The Panel finds that using privacy protection services is further evidence of bad faith. Therefore, the Panel finds the Respondent registered and is using the disputed domain name in bad faith and that the Complainant has established the third element of paragraph 4(a) 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 <levioutlet.com> be transferred to the Complainant. Luiz E. Montaury Pimenta Sole Panelist Date: August 14, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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