Westmore · UDRP DecisionClarkemodetandco.com
The Panel ordered transfer of <clarkemodetandco.com>. It found the domain confusingly similar to the Complainant’s CLARKE, MODET & CO trademarks because the mark was reproduced with “and” replacing the ampersand. The Respondent lacked rights or legitimate interests, and the circumstances—including the USD 990 sale offer, nonresponse, initially masked registrant data, and lack of any conceivable legitimate use—supported registration and use in bad faith.
The timeline behind clarkemodetandco.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 clarkemodetandco.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates how a domain that converts an ampersand in a mark into the word “and” may remain confusingly similar. It also shows that passive holding does not insulate a respondent where the surrounding record includes a prior sale offer, nonresponse, initially masked registrant data, knowledge of the mark, and no conceivable legitimate use.
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 Clarke, Modet y Cía., S.L. v. Domain Administrator, See PrivacyGuardian.org / Zuhal Yilmaz Case No. D2018-0655 1. The Parties The Complainant is Clarke, Modet y Cía., S.L. of Madrid, Spain, internally-represented. The Respondents are Domain Administrator, See PrivacyGuardian.org of Phoenix, Arizona, United States of America (“United States”) / Zuhal Yilmaz of Ankara, Cankaya, Turkey. 2. The Domain Name and Registrar The disputed domain name <clarkemodetandco.com> is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 23, 2018. On March 23, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 25, 2018, 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 March 26, 2018 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 26, 2018. The Center verified that the Complaint together with 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 29, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 18, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 19, 2018. The Center appointed Dietrich Beier as the sole panelist in this matter on April 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 Complainant, founded in Spain in 1879, is nowadays a group of firms in the Spanish and Portuguese speaking countries specialized inter alia in Intellectual Property Law. The Complainant is present and active in 10 countries, has 34 offices and more than 450 professionals. The Complainant is the proprietor of several trademarks for CLARKE, MODET & CO, inter alia the European Union Trademark No. 002194918 registered for several services in classes 16, 35, 41, 42 on August 20, 2002. The disputed domain name was registered on March 20, 2018. A real name of the Respondent, other than “domain administrator”, was initially not available in the WhoIs and the registrant organization was “PrivacyGuardian.org”. On Registrar’s information, a further name, Zuhal Yilmaz, was made available for the Respondent with an address in Ankara, Turkey. In accordance with the Complaint, the disputed domain name resolved to a website where the disputed domain name was put on sale for a sum of USD 990. At the current time, the disputed domain name is parked. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is identical or confusingly similar to its CLARKE, MODET & CO trademarks and that the Respondent has no rights or legitimate interests in the disputed domain name. Furthermore, the Complainant states that the disputed domain name was registered in bad faith, as the Respondent could not ignore the Complainant and its trademarks widely available on the Internet. By offering the disputed domain name for sale, the Respondent showed his clear intention to obtain commercial gain with it. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order to succeed in its claim, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied: (i) The disputed 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 with respect to the disputed domain name; and (iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has established the fact that it has valid trademark rights for CLARKE, MODET & CO in several classes. The disputed domain name is confusingly similar to the Complainant’s CLARKE, MODET & CO trademarks since it is reproduced in the disputed domain name, whereas it is acknowledged that the generic Top-Level Domain (“gTLD”) “.com” does not generally have a relevant influence on the similarity of a trademark and a domain name. The same applies for the comma whereas the element “&” is reproduced by the word “and” in the disputed domain name. The Panel therefore considers the disputed domain name to be confusingly similar to the CLARKE, MODET & CO trademarks, in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests There are no indications that the Respondent has rights or legitimate interests in the disputed domain name as a licensee of the Complainant or that the Complainant has granted the Respondent any permission or has given its consent to use its trademarks. Furthermore, the Respondent has no rights or legitimate interests in the disputed domain name, as there is no indication that the Respondent is commonly known by the name “clarkemodetandco” or that the Respondent is using the disputed domain name in connection with a bona fide offering of goods or services or making a legitimate noncommercial or fair use of the disputed domain name. The Panel therefore finds that the Respondent does not have rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith In the view of the Panel, the Respondent must have been aware of the Complainant and its trademarks, when registering the disputed domain name, being the Complainant’s trademark entirely reproduced in the disputed domain name. The Complainant has not authorized the Respondent to make use of its trademarks. From the record, the Panel does not see any conceivable legitimate use being made by the Respondent of the disputed domain name. In addition, it is the consensus view of previous UDRP panels following the decision Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003 , that the apparent lack of active use of the disputed domain name does not as such prevent a finding of bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include, not exhaustive, no response to the complaint having been filed and the registrant’s concealment of its identity. In the present case, no response was filed and the address data of the registrant were masked at the initial approach to contact the registrant of the disputed domain name. Further circumstances of this case, in particular the offer to sell the disputed domain name on the website under the disputed domain name indicate that the Respondent registered and used the disputed domain name primarily with the intention of attempting to attract, for commercial gain, Internet users to its website or other online locations, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of such website or location, or of a product or service on such website or location. The Panel therefore considers the disputed domain name to have been registered and used in bad faith in accordance with paragraph 4(a)(iii) 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 <clarkemodetandco.com> be transferred to the Complainant. Dietrich Beier Sole Panelist Date: May 3, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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