Westmore · UDRP DecisionGoldenoutletit2017.com
The Panel ordered transfer of <goldenoutletit2017.com>. Applying a holistic confusing-similarity analysis and following a closely analogous prior decision involving <goldenoutlet2017.com>, the Panel found that the domain targeted the Complainant’s GOLDEN GOOSE marks. The Panel also found no rights or legitimate interests and concluded that the Respondent registered and used the domain in bad faith to attract users to a website selling counterfeit products while displaying the Complainant’s marks, logos, and images.
The timeline behind goldenoutletit2017.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 goldenoutletit2017.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates that confusing similarity may be found even where a domain contains only part of a multiword mark, particularly when the domain’s composition and associated website content demonstrate deliberate targeting. It also shows the strong significance panels may attach to counterfeit sales when assessing both legitimate interests and bad faith.
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 Golden Goose S.P.A. v. Katja Muench Case No. D2017-2158 1. The Parties The Complainant is Golden Goose S.P.A. of Milan, Italy, represented by Scarpellini Naj-Oleari & Partners, Italy. The Respondent is Katja Muench of Dresden, Germany. 2. The Domain Name and Registrar The disputed domain name <goldenoutletit2017.com> is registered with 1API GmbH (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 3, 2017. On November 6, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 8, 2017, 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. The Center verified that 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 9, 2017. In accordance with the Rules, paragraph 5, the due date for Response was November 29, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 30, 2018. The Center appointed Albert Agustinoy Guilayn as the sole panelist in this matter on January 8, 2018. 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 an Italian company active in the field of fashion, currently designing, manufacturing and distributing clothing and complements, having linked said activities to its GOLDEN GOOSE trademarks. Indeed, the Complainant has used, registered or applied to register the trademarks GOLDEN GOOSE DELUXE BRAND and GOLDEN GOOSE for a wide variety of goods. Namely, the Complainant is the owner of the following registered trademarks: - International Trademark No. 881244 GOLDEN GOOSE DELUXE BRAND, registered on December 12, 2005, in classes 3, 14 and 25. - Italian Trademark No. 983654 GOLDEN GOOSE DELUXE BRAND, registered on November 11, 2005, in classes 3, 14, 18 and 25. - Italian Trademark No. 1657474 GOLDEN GOOSE, registered on November 24, 2015, in classes 18, 25 and 35. The Complainant is also present on the Internet by means of its corporate website, located at “www.goldengoosedeluxebrand.com” and through which the Complainant offers information on the company as well as on its products and activities. The disputed domain name was registered by the Respondent on July 28, 2017, and, at the moment this procedure was filed, it was linked to a website where, according to the Complaint, counterfeit products of the Complainant were being sold. Moreover, the corresponding website included numerous logos, pictures and trademarks corresponding to the Complainant and its GOLDEN GOOSE brand. The disputed domain name is currently inactive. The Panel has not obtained clear information on the Respondent, as she has not filed a response to the Complaint. 5. Parties’ Contentions A. Complainant The Complainant contends that: - The disputed domain name is confusingly similar to the GOLDEN GOOSE trademarks on which the Complainant has rights. - The Respondent has no rights or legitimate interests in respect of the disputed domain name. - The Respondent registered and uses the disputed domain name in bad faith. - As a consequence of the above-mentioned findings, the disputed domain name <goldenoutletit2017.com> should be transferred to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In accordance to paragraph 4(a) of the Policy, the Complainant must prove the Panel the concurrence of three circumstances in order to obtain the transfer of the disputed domain name. Said circumstances are the following ones: (i) To prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. (ii) To prove that the Respondent does not hold rights or legitimate interests in respect of the disputed domain name. (iii) To prove that the disputed domain name has been registered and is being used by the Respondent in bad faith. A. Identical or Confusingly Similar As indicated in the Factual Background, the Complainant has rights in the trademark GOLDEN GOOSE. WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Third Edition (“WIPO Overview 3.0”), section 1.7 , involves “a reasoned but relatively straightforward comparison between the complainant’s trademark and the disputed domain name.” A very similar situation to the one that is given in this case was given in Golden Goose S.p.A. v. Phillipp Fischer , WIPO Case No. D2017-1010 (which was focused on the domain name <goldenoutlet2017.com>, while in this case the disputed domain name is <goldenoutletit2017.com>). In that case, the panel considered that “it might be questioned whether the word ‘golden’ appearing in the disputed domain name, in conjunction with ‘outlet2017.com’, is sufficiently evocative of the dominant phrase of the Complainant’s trademark, namely ‘Golden Goose’, to cause confusion in the minds of Internet users . (…)The question is not merely whether Internet users who have reason to seek the Complainant’s online presence, and who are confronted with the disputed domain name in, for example, a search result or link, may be confused into believing initially that it belongs to the Complainant. The opposite question must also be asked, i.e. , whether an Internet user arriving at the disputed domain name by whatever means, or perusing the website to which it resolves, with its prominent heading GOLDEN GOOSE DELUXE BRAND (as discussed below), may be confused into believing that the trademark GOLDEN GOOSE DELUXE BRAND and the domain name <goldenoutlet2017.com> belong legitimately together and that the disputed domain name is that of the Complainant . As further reported in WIPO Overview 3.0, section 1.7 , ‘... panels have also found that the overall facts and circumstances of a case (including relevant website content) may support a finding of confusing similarity, particularly where it appears that the respondent registered the domain name precisely because it believed that the domain name was confusingly similar to a mark held by the complainant ’. The test under paragraph 4(a)(i) of the Policy remains a comparison of the disputed domain name with the Complainant’s trademark. Taking a holistic view of the disputed domain name in the light of the clear purpose of the website to which it resolves, to be expanded upon below, the Panel finds it inescapable that the Respondent has set out to target specifically the Complainant and has acquired the disputed domain name ‘... precisely because it believed that the domain name was confusingly similar to a mark held by the complainant’. The descriptive word ‘outlet’ and date ‘2017’ are found not to detract from but to exacerbate confusing similarity. The Panel finds for the Complainant under paragraph 4(a)(i) of the Policy .” The Panel considers that the above-mentioned “holistic” approach should also apply in this case given the obvious similarities existing between the disputed domain names in each procedure. Moreover, following this approach does also ensure, as indicated by section 4.1 of WIPO Overview 3.0, “overall credibility of the UDRP system that parties can reasonably anticipate the result of their case. Often noting the existence of similar facts and circumstances or identifying distinguishing factors, panels strive for consistency with prior decisions. In so doing, panels seek to ensure that the UDRP operates in a fair and predictable manner for all stakeholders while also retaining sufficient flexibility to address evolving Internet and domain name practices ” . Taking into account the above, the Panel considers that the first element of the Policy has been met by the Complainant. B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy requires that the Respondent does not hold rights or legitimate interests on the disputed domain name. At this regard, paragraph 4(c) of the Policy foresees a set of circumstances where the Respondent may be considered as holding said rights or interests. Those circumstances are: - To have used the disputed domain name or to have made demonstrable preparations for its use before any notice of the dispute in connection with a bona fide offering of goods and services; or - To have been commonly known by the disputed domain name, even when no trademark or service mark right has been acquired; or - To make a legitimate non-commercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. In the present case, none of the above-mentioned circumstances applies. Actually, in appearance, neither the Respondent has been commonly known by the name “Golden Goose” nor it is developing a “legitimate non-commercial” activity by means of the disputed domain name. As a matter of fact, it is quite unlikely that an unfortunate coincidence has been given in the present case. On the contrary, it seems much more likely that the Respondent was clearly aware of the existence of the Complainant’s trademarks and did not register the disputed domain name for other purposes than to attract Internet users through the disputed domain name and confuse them with the sale of counterfeit products. In addition, the Respondent has not filed any response to the Complaint in this proceeding, an attitude that seems to prove her absence of rights or legitimate interests on the disputed domain name or at least her lack of interest in demonstrating the contrary. In relation with this circumstance, many decisions adopted under the Policy (see, for example Berlitz Investment Corp. v. Stefan Tinculescu , WIPO Case No. D2003-0465 ; or Adventis Pharmaceuticals Products, Inc. v. Nejat , WIPO Case No. D2003-0401 ), have stated that by defaulting and failing to respond, the respondent fails to offer evidence of any of the circumstances contemplated in paragraph 4(c) of the Policy. In consequence, the Panel considers that the second condition set out by the Policy has been met by the Complainant. C. Registered and Used in Bad Faith The last of the elements established by paragraph 4(a) of the Policy is that the Complainant proves that the Respondent has registered and uses the disputed domain name in bad faith. As it has been previously stated, the Respondent is neither linked nor associated at all with the Complainant. On the contrary, the Complainant has provided evidence showing that the Respondent used the disputed domain name for the sale of counterfeit products of the Complainant. Given this circumstance, the only likely explanation for the registration of the disputed domain name by the Respondent is that she was aiming at unfairly benefiting from the Complainant’s trademarks in order to attract Internet users to her website. In addition, that website was used for the sale of counterfeit products, a use that can only be considered as obvious bad faith. Taking into account the above-mentioned arguments, the Panel concludes that the disputed domain name was registered and has been 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 disputed domain name <goldenoutletit2017.com> be transferred to the Complainant. Albert Agustinoy Guilayn Sole Panelist Date: February 15, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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