Westmore · UDRP DecisionSchiesserunderwear.com
The Panel ordered transfer of <schiesserunderwear.com>. It found the domain confusingly similar to the Complainant’s registered SCHIESSER mark because it incorporated the mark with the descriptive word “underwear.” The Respondent lacked rights or legitimate interests because it was unauthorized and used the domain to divert confused customers to an online shop. Registration and use in bad faith were established under Policy paragraph 4(b)(iv), based on the Respondent’s use of SCHIESSER to market underwear that was not manufactured or sourced by the Complainant.
The timeline behind schiesserunderwear.com
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This decision illustrates a strong transfer fact pattern in which a domain reproduces a trademark and adds the exact category of goods sold by the trademark owner. The associated website did not merely use the mark passively; it used SCHIESSER as a marketing banner for an underwear shop, while customer complaints supported findings of confusion and misleading transactions. Those facts linked the same conduct to lack of legitimate interests and bad faith under Policy paragraph 4(b)(iv).
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 Schiesser Marken GmbH v. Mark Wilkerson Case No. D2018-2211 1. The Parties The Complainant is Schiesser Marken GmbH of Radolfzell am Bodensee, Germany, represented by Boehmert & Boehmert, Germany. The Respondent is Mark Wilkerson of Chicago, Illinois, United States of America (“USA”). 2. The Domain Name and Registrar The disputed domain name <schiesserunderwear.com> 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 September 28, 2018. On October 1, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 3, 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. 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 October 5, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 25, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 26, 2018. The Center appointed Clive Duncan Thorne as the sole panelist in this matter on November 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 According to the Complaint the Complainant is part of the German Schiesser group of companies which are a leading producer of underwear and lingerie. Their products are of a high quality and have been sold under the brand SCHIESSER for over 135 years. Examples of their products are set out in extracts from the corporate website at Annex 4 to the Complaint. The Complainant owns a large portfolio of trade mark registrations for the mark SCHIESSER including International Registration No. 897355 registered on March 23, 2005 designating numerous countries Including Switzerland, Republic of Korea, Romania, Russia, Norway, Turkey, Ukraine and the USA. It is also the owner of European Union trade mark for SCHIESSEER No. 00408633, registered on November 21, 2005. Printouts from the data bases of those registrations are exhibited at Annex 5 to the Complaint and a list of the other registrations for SCHIESSER at Annex 6. The Respondent according to WhoIs-information appears to be a private individual from Chicago and is not known by, or in any way related to, the Complainant. The disputed domain name <schiesserunderwear.com> links to an online shop allegedly offering products under the Complainant’s mark SCHIESSER. The website is in English and priced in USD. The Complainant became aware of the website after receiving several customer complaints. Customers upon ordering did not received any products or, instead, cheap products of other commercial origin. Printouts of examples of these complaints are set out at Annex 7 to the Complaint. In the absence of a Response and evidence from the Respondent the Panel finds the above evidence adduced by the Complainant to be true and proceeds to determine the Complaint on the basis of the Complainant’s evidence. 5. Parties’ Contentions A. Complainant 1. The Complainant submits that it has registered trade mark rights in the mark SCHIESSER and that the disputed domain name is confusingly similar to that mark. 2. On the evidence the Respondent has not been licensed or permitted to use the mark SCHIESSER and therefore the Respondent has no rights or legitimate interests in respect of the disputed domain name. 3. On the evidence the Respondent registered and used the disputed domain name with knowledge of the Complainant’s mark SCHIESSER and has been using it to attract for commercial gain customers who are likely to have been confused as to the ownership of the website and this constitutes bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Panel is satisfied that the Complainant owns registered trade mark rights in the mark SCHIESSER as referred to above including in the USA, the residence of the Respondent. The disputed domain name consists of the word “schiesser” which is identical to the Complainant’s mark SCHIESSER. The word “underwear” is descriptive of the Complainant’s product. It is well-established that for the purpose of comparing the domain name with the mark the generic Top-Level Domain, in this case “.com”, should not be taken into account. In these circumstances the Panel finds that the disputed domain name <schiesserunderwear.com> is confusingly similar to the Complainant’s mark SCHIESSER. B. Rights or Legitimate Interests On the evidence adduced by the Complainant it is apparent that the Complainant has not licensed or authorized the Respondent to use its trade mark SCHIESSER. It is also clear from the Complainant’s evidence that the Respondent is using the domain name to divert customers to its website with the object of confusing customers to purchase from the website thinking that it is, contrary to the fact, a website belonging to the Complainant. This is shown by the evidence of complaints by customers who were confused by the Respondent’s use of the mark SCHIESSER on top of the website as a marketing banner. Taking into account that there is no contrary evidence from the Respondent the Panel finds for the Complainant in respect of this element. C. Registered and Used in Bad Faith On the Complainant’s evidence it is clear, as submitted by the Complainant, that the Respondent started offering the underwear products under the mark SCHIESSER immediately after registering the disputed domain name. It must therefore have been aware of the Complainant’s trade mark rights. The Respondent offered underwear products not of the Complainant’s manufacture but misrepresented to customers by use of the mark SCHIESSER that they were manufactured or sourced from the Complainant. This is clear evidence of registration and use of the domain name in bad faith within paragraph 4(b)(iv) 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 <schiesserunderwear.com> be transferred to the Complainant. Clive Duncan Thorne Sole Panelist Date: November 10, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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