Westmore · UDRP DecisionHugoboss.sale
The Panel ordered transfer of <hugoboss.sale>. It found the domain confusingly similar to the registered HUGO BOSS trademark, that the Complainant had established an unrebutted prima facie case that the Respondent lacked rights or legitimate interests, and that the internationally well-known mark, together with use of the domain for a website offering website-building services, established bad-faith registration and use intended to attract Internet users for commercial gain through confusion.
The timeline behind hugoboss.sale
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 hugoboss.sale — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates an exact-mark domain dispute in which a well-known trademark, an unrebutted absence of authorization, and commercial parking-page use were sufficient for transfer. The Panel found bad faith even though the services shown on the page were unrelated to the goods or services for which HUGO BOSS was known.
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 Hugo Boss Trade Mark Management GmbH & Co. and Hugo Boss AG v. Brett Fuller Case No. D2018-0308 1. The Parties The Complainants are Hugo Boss Trade Mark Management GmbH & Co. KG and Hugo Boss AG of Metzingen, Germany, represented by Dennemeyer & Associates S.A., Germany. The Respondent is Brett Fuller of Basildon, England, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”). 2. The Domain Name and Registrar The disputed domain name <hugoboss.sale> is registered with Mesh Digital Limited (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 12, 2018. On February 12, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 13, 2018, 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 of a request for clarification by the Center, the Complainant filed an amendment to the Complaint on February 26, 2018. 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 27, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 19, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 20, 2018. The Center appointed Tuukka Airaksinen as the sole panelist in this matter on March 26, 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 Complainants are Hugo Boss Trade Mark Management GmbH & Co. and Hugo Boss AG (hereinafter referred as to “the Complainant”) and are affiliated to Hugo Boss Group founded in 1924. The Complainant Hugo Boss Trade Mark Management GmbH & Co. is the proprietor of the trademark HUGO BOSS, registered inter alia in Germany under No. 1103572 on March 13, 1987. Furthermore, the Complainant Hugo Boss AG owns several domain names containing the HUGO BOSS trademark, such as <hugoboss.com> and <hugoboss.co.uk>, among others. The disputed domain name was registered on February 12, 2018 and resolves to a Registrar’s parking page offering website building services. 5. Parties’ Contentions A. Complainant The Complainant’s trademark HUGO BOSS is an internationally well-known trademark. The disputed domain name is identical with the Complainant’s trademark and the addition of the generic Top-Level Domain (“gTLD”) “.sale” does not have any impact on the overall impression of the disputed domain name. The Complainant has not authorized or otherwise allowed the Respondent to use the Complainant’s trademarks or the disputed domain name. The Respondent is not making legitimate noncommercial or fair use of the disputed domain name. Considering the reputation of the Complainant’s trademark, the Respondent must have been aware of the Complainant’s rights when registering the disputed domain name. There is no bona fide offering of goods or services at the website to which the disputed domain name resolves. The website resolves to a parking page, usually inviting visitors to make an offer to purchase the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order to obtain the transfer of a domain name, a complainant must prove the three elements of paragraph 4(a) of the Policy, regardless of whether the respondent files a response to the complaint. The first element is that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. For the second element a complainant must prove is that the respondent has no rights or legitimate interests in respect of the domain name. For the third element a complainant must establish is that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy requires that the Complainant establishes that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. Consequently, the Complainant must prove that it has rights to a trademark, and that the disputed domain name is identical or confusingly similar to this trademark. The disputed domain name is identical to the Complainant’s HUGO BOSS registered trademark, disregarding the gTLD “.sale”. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s respective trademark and hence the first element of the Policy has been fulfilled. B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy requires that the Complainant establish that the Respondent has no rights or legitimate interests to the disputed domain name. The consensus view among UDRP panels is that once a complainant has made a prima facie showing the absence of the respondent’s rights or legitimate interests in a disputed domain name the burden of production shifts to the respondent to come forward with evidence of such rights or legitimate interests. If the respondent fails to do so, the complainant is deemed to have satisfied the second element of the Policy. See, e.g ., Document Technologies, Inc. v. International Electronic Communications Inc ., WIPO Case No. D2000-0270 and section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Complainant has credibly submitted that the Respondent is not a licensee of the Complainant, nor has been otherwise allowed by the Complainant to use the Complainant’s trademark in a domain name or otherwise. The Complainant has also credibly submitted that the Respondent has no rights or legitimate interests to the disputed domain name. Accordingly, the Panel finds that the Complainant has made a prima facie case that has not been rebutted by the Respondent. In light of the Panel’s findings below, the Panel finds that there are no other circumstances which provide the Respondent with any rights or legitimate interests in the disputed domain name. Therefore, the Panel finds that the second element of the Policy is fulfilled. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires that the Complainant establishes that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy provides that the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: “(i) circumstances indicating that [the respondent has] registered or has acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [the respondent’s] documented out-of-pocket costs directly related to the domain name; or (ii) [the 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 [the respondent has] engaged in a pattern of such conduct; or (iii) [the respondent has] registered the domain name primarily for the purpose of disrupting the business or competitor; or (iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.” The Panel agrees that the Complainant’s trademark is internationally well-known and hence it is inconceivable that the Respondent would not have been aware of the Complainant’s trademark when registering the disputed domain name. The disputed domain name resolves to a website offering website building services. Even though these services are not as such related to the goods or services for which the Complainant’s trademark is well-known, the Respondent is using the disputed domain name to create confusion in order to attract, for commercial gain, Internet users to the Respondent’s website. Hence the Panel finds that the disputed domain name was registered and is being used in bad faith. Therefore, the Panel finds that the third element of the Policy is fulfilled. 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 <hugoboss.sale> be transferred to the Complainant. Tuukka Airaksinen Sole Panelist Date: April 9, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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