Westmore · UDRP DecisionStuartweitzman2015.com
The Panel ordered transfer of <stuartweitzman2015.com>. It found the Domain Name confusingly similar to the Complainant's STUART WEITZMAN mark because it incorporated the mark with only the addition of “2015.” The Respondent lacked rights or legitimate interests because it used the Domain Name for an unauthorized website offering purported Stuart Weitzman shoes without disclosing the absence of endorsement or sponsorship. The same use intentionally attracted Internet users for commercial gain through confusion and established bad-faith registration and use. Although the Complainant provided no evidence supporting its counterfeit allegation, the Panel found that the claim's evidentiary deficiency did not change the outcome.
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The decision illustrates that failure to prove an allegation of counterfeiting is not necessarily dispositive where independently established website conduct shows targeting, lack of authorization, and misleading commercial use. The Panel expressly analyzed the alternative possibility that the goods were genuine and still found no rights or legitimate interests because the Domain Name was essentially identical to the mark and the website did not disclose its lack of affiliation.
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 Stuart Weitzman IP, LLC v. ty / Privacy Protection Service Inc., d/b/a PrivacyProtect.org Case No. D2015-0480 1. The Parties The Complainant is Stuart Weitzman IP, LLC of New York, New York, United States of America ("United States"), represented by The Gioconda Law Group PLLC, United States. The Respondent is ty of Putian, China; Privacy Protection Service Inc., d/b/a PrivacyProtect.org of Nobby Beach, Queensland, Australia. 2. The Domain Name and Registrar The disputed domain name <stuartweitzman2015.com> (the "Domain Name") 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 March 19, 2015. On March 19, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 20, 2015, the Registrar transmitted by email 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 email communication to the Complainant on March 24, 2015 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 March 24, 2015. 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 March 27, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 16, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 17, 2015. The Center appointed Ian Lowe as the sole panelist in this matter on April 29, 2015. 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 designer, manufacturer and retailer of women's footwear and handbags. It sells its goods to consumers through its chain of retail stores, partnerships with department stores and on its website at "www.stuartweitzman.com". The Complaint does not reveal when the Complainant commenced business under the STUART WEITZMAN mark but it annexes evidence of the registration of a United States trademark number 1,386,002 in respect of the word mark STUART WEITZMAN by the individual Stuart Weitzman on March 11, 1986 noting that it was first used in commerce for handbags on January 1, 1984 and for shoes on November 1, 1978. A subsequent registration by the same individual of United States trademark number 2,749,908 on August 12, 2003 for the same mark indicates first use in commerce of the mark in respect of retail store services on August 6, 1995. A third registration of United States trademark number 3,474,821 on July 29, 2008 in the name of the Complainant is in respect of a slightly stylized version of the word mark STUART WEITZMAN with a particular font and exaggerated spacing between the letters of "STUART". The Complaint does not annex any evidence that the trademark registrations are subsisting but it states that they are in full force and effect. The Panel accepts that the Complainant and/or its predecessor the individual Stuart Weitzman has made continuous use of the STUART WEITZMAN mark for a number of years, prior to the registration of the Domain Name. The Domain Name was registered on January 29, 2015. At the time of preparation of the Complaint the website to which the Domain Name resolved (the "Website") offered for sale "Stuart Weitzman" shoe products and used the stylized mark referred to above. 5. Parties' Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its STUART WEITZMAN trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. The Complainant alleges in particular that the Respondent is offering counterfeit goods from the Website that purport to be the genuine goods of the Complainant. B. Respondent The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that: (i) the Domain Name is identical or confusingly similar to a trademark 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 and is being used in bad faith. A. Identical or Confusingly Similar The Complainant is the owner of the stylized version of the STUART WEITZMAN trademark and claims ownership of the earlier marks. The Panel accepts that this is the case and that the Complainant does have uncontested rights in the trademark STUART WEITZMAN. Ignoring the generic Top-Level Domain ("gTLD") suffix ".com", the Domain Name comprises the STUART WEITZMAN mark together only with the generic term "2015". In the view of the Panel, this does not detract from the distinctiveness of the STUART WEITZMAN mark. Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights. B. Rights or Legitimate Interests On the basis of the three screenshots annexed to the Complaint, it is apparent that the Respondent is offering for sale from the Website shoe products that purport to be genuine "Stuart Weitzman" products under the STUART WEITZMAN mark. Some of them are offered at prices claimed to be discounted by over 50%. The Complainant makes the bare assertion in the Complaint that the goods offered for sale are "counterfeit or otherwise illegal versions of the Complainant's products" but does not put forward any evidence to support that assertion or any explanation as to why it claims that the products for sale are not genuine or lawful. Whilst this is unsatisfactory, the Panel is conscious that the Respondent has chosen not to respond to the Complaint and that it is indeed likely that in view of the discounts offered there is a strong likelihood that the goods are counterfeit. The Panel also accepts that the Respondent has not been authorised by the Complainant to use a domain name comprising the STUART WEITZMAN mark. The Panel further considers that even if the Respondent were selling genuine goods of the Complainant from the Website this would not in this case give rise to rights or legitimate interests in respect of the Domain Name since it comprises a name essentially identical to the Complainant's mark, with the addition only of the current year, and the Website does not disclose that it is not endorsed or sponsored by the Complainant. The Panel considers that the Complainant has made out a prima facie case which the Respondent has failed to rebut and, in the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith In light of the nature of the Domain Name and the use to which the Domain Name has been put as described above, there can be no doubt that the Respondent had the Complainant and its rights in the STUART WEITZMAN trademark in mind when it registered the Domain Name. The Panel considers that the unauthorised use of the Domain Name for a website selling products that purport to be the Complainant's products does point to bad faith registration and use for the purposes of the Policy as the Respondent is attracting for commercial gain Internet users by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the Website. The fact that the Respondent chose to use a privacy protection service for what claims to be a genuine commercial website also supports a finding of bad faith. Accordingly, the Panel finds that the Domain Name was registered and is being 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 Domain Name <stuartweitzman2015.com> be transferred to the Complainant. Ian Lowe Sole Panelist Date: May 13, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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