Westmore · UDRP DecisionCalvinklein.pro
The Panel ordered transfer of <calvinklein.pro>. It found the domain identical to the complainants’ CALVIN KLEIN trademarks, found no rights or legitimate interests because the respondent was unauthorized and had used the domain to misrepresent itself as the complainant, and found bad faith based on the respondent’s evident knowledge of the widely known marks and its use of the domain to attract users through confusion.
The timeline behind calvinklein.pro
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 calvinklein.pro — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates a straightforward exact-match trademark dispute in which prior use as an unauthorized branded shop supplied evidence across both the rights-or-legitimate-interests and bad-faith elements. The later inactivity of the website did not erase the significance of its earlier content, particularly the display of the complainants’ product photographs.
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 Calvin Klein Trademark Trust, Calvin Klein Inc. v. Vladimir Shadrin Case No. D2018-0722 1. The Parties Complainant is Calvin Klein Trademark Trust, Calvin Klein Inc. of New York, New York, United States of America (“United States”), represented by Kestenberg Siegal Lipkus LLP, Canada. Respondent is Vladimir Shadrin of Moscow, Russian Federation. 2. The Domain Name and Registrar The disputed domain name <calvinklein.pro> (the “Domain Name”) is registered with Tucows Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 30, 2018. On April 3, 2018, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. On April 3, 2018, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on April 9, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 29, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 30, 2018. The Center appointed Gregor Vos as the sole panelist in this matter on May 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 Complainant is engaged in the production, sale and licensing of inter alia men’s and women’s apparel, fragrances, accessories, and footwear. Complainant is the owner of the following trademarks (the “Trademarks”): - United States Trademark registration No. 1633261 for CALVIN KLEIN (design), registered on January 29, 1991; - United States Trademark registration No. 1086041 for CALVIN KLEIN (word), registered on February 21, 1978. Further, Complainant owns the following domain name registrations which wholly incorporate the Trademarks: - “www.calvinklein.com”; - “www.calvinkleinbags.com”; - “www.calvinkleinunderwear.com”; and - “www.calvinkleinfashion.com” The Domain Name was registered by Respondent on October 9, 2017. The Domain Name previously resolved to a webpage selling purported CALVIN KLEIN goods, and currently resolves to an inactive website. 5. Parties’ Contentions A. Complainant Complainant asserts that the Domain Name is confusingly similar to the Trademarks as it incorporates the Trademarks in its entirety. According to Complainant, the addition of the generic Top-Level Domain (“gTLD”) “.pro” will only add to the confusion because Complainant features a number of professional brand ambassadors. Furthermore, Complainant claims that Respondent has no rights or legitimate interests in respect of the Domain Name. Complainant’s first use and registration of the Trademarks predates any use Respondent may have made of the Domain Name. Complainant further states that Respondent is not affiliated with Complainant in any way. Complainant would not have authorized Respondent to register or use its Trademarks of to seek the registration of a domain name incorporating the Trademarks. According to Complainant, Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. The Domain Name is currently inactive. Complainant has not authorized or licensed Respondent to use the Trademarks in connection with any services on the Domain Name. Complainant further states that Respondent is not commonly known by the Domain Name. The WhoIs information discloses that Respondent is named Vladimir Shadrin. Finally, Complainant asserts that the Domain Name has been registered and used in bad faith. Complainant states that Respondent is diverting Complainant’s customers or potential customers seeking information about Complainant to an inactive website. According to Complainant, Respondent’s bad faith is also shown by the fact that Respondent used to operate a Calvin Klein “shop” without its authorization. On its website, Respondent was reproducing images originating from Complainant, without its permission. Complainant further states that Respondent’s registration of the Domain Name was solely done to prevent Complainant from registering the Domain Name and with the intention to sell the Domain Name for valuable consideration in excess of any out-of-pocket expenses. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Based on paragraph 4(a) of the Policy, a request to transfer a domain name must meet three cumulative conditions: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) 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. Only if all three elements are fulfilled, the Panel is able to grant the remedies requested by Complainant. A. Identical or Confusingly Similar To prove this element, Complainant must first establish that there is a trademark in which it has rights. Complainant has sufficiently proven that there are CALVIN KLEIN Trademarks in which it has rights. The threshold test for confusing similarity under the Policy involves a comparison between the Trademarks and the Domain Name to assess whether the Trademarks are recognizable within the Domain Name. For the purpose of assessing confusing similarity under the Policy, the gTLD suffix (in this case, “.pro”) is generally ignored in the comparison between the Domain Name and the Trademarks (see Bialetti Industrie S.p.A. v. Onno Brantjes, Stichting Taxaceae , WIPO Case No. D2016-1450 ; Canyon Bicycles GmbH v. Domains By Proxy, LLC / Rob van Eck , WIPO Case No. D2014-0206 ; Zions Bancorporation v. Mohammed Akik Miah , WIPO Case No. D2014-0269 ). This case does not contain any indications to the contrary. The Domain Name incorporates the Trademarks in its entirely. Therefore, the Panel finds that the Domain Name is identical with the Trademarks. Consequently, the Panel finds that the requirement under paragraph 4(a)(i) of the Policy has been fulfilled. B. Rights or Legitimate Interests Complainant bears the burden of proof of showing that Respondent has no rights or legitimate interests in the Domain Name. However, if Complainant succeeds in making a prima facie case, the burden of production shifts to Respondent, which will then have to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the Domain Name (see Croatia Airlines d.d. v. Modern Empire Internet Ltd. , WIPO Case No. D2003-0455 ). Paragraph 4(c) of the Policy provides circumstances in which such rights or legitimate interests to the domain name may be demonstrated. These circumstances include i) use of the domain name in connection with a bona fide offering of goods or services; ii) being commonly known by the domain name; and iii) making legitimate noncommercial or fair use of the domain name. Complainant states that it is not affiliated with Respondent nor that it has authorized or licensed Respondent to use the Trademarks. In addition, Complainant submitted that there is no evidence that Respondent is commonly known by the Domain Name. Furthermore, there seems to be no evidence of Respondent’s use, or demonstrable preparation of use, of the Domain Name in connection with a bona fide offering of goods and services, as the Respondent has copied the Complainant’s images and otherwise misrepresents itself as the Complainant on the website and through the Domain Name itself (see section 2.5.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). The Panel finds that this sufficiently establishes Complainant’s prima facie case. The burden of production therefore shifts to Respondent. On its part, Respondent has not provided any indications of rights or legitimate interests in the Domain Name. Considering the file before it, the Panel holds that Respondent has no rights or legitimate interests in the Domain Name in the sense of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(b) of the Policy provides circumstances which, if present, shall be evidence of the registration and use of a domain name in bad faith. The Panel finds that given Complainant’s widespread and extensive use of the Trademarks and the fact that the Domain Name resolved to a website which contained photographs of Complainant’s products, it would not be feasible to consider that Respondent – at the time of the registration of the Domain Name – could not have known of the Trademarks. In line with consensus Panel view, the Panel finds that registration of a domain name that is confusingly similar to a widely-known trademark by an unaffiliated entity is suggestive of bad faith ( Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co. , WIPO Case No. D2000-0163 ). In addition, as the Domain Name is identical to the Trademarks and did resolve to a website which contained photographs of Complainant’s products, the Panel finds that Respondent had the intention to attract Internet users by creating a likelihood of confusion with Complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of the website to which the Domain Name resolved and the products thereon. Consequently, the Panel finds that the requirement under paragraph 4(a)(iii) of the Policy has also been 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 Domain Name, <calvinklein.pro>, be transferred to Complainant. Gregor Vos Sole Panelist Date: May 29, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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