Westmore · UDRP DecisionAllsaintsglossy.com
The Panel ordered transfer of <allsaintsglossy.com>. It found the domain confusingly similar to the Complainant’s ALLSAINTS mark because the mark remained recognizable despite the addition of “glossy.” Assuming, due to evidentiary gaps, that the website genuinely sold original ALLSAINTS goods, the Panel nevertheless found no legitimate reseller interest because the site did not disclose the lack of an official relationship and instead suggested an association with the Complainant. The prominent use of the mark, matching script, sale of clothing and footwear, and absence of a disclaimer also supported findings of bad-faith registration and use for commercial gain through confusion.
The timeline behind allsaintsglossy.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 allsaintsglossy.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates that an unauthorized reseller may fail the rights-or-legitimate-interests test even where a panel assumes the goods are authentic and genuinely offered. The decisive issue was the website’s failure to accurately disclose its relationship with the trademark owner, reinforced by branding and presentation that suggested official affiliation. It also demonstrates that unsupported counterfeit and fraud allegations need not be accepted for a complainant to prevail where the proven website conduct independently satisfies the UDRP.
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 All Saints Retail Limited v. Mao Guo Case No. D2018-2907 1. The Parties The Complainant is All Saints Retail Limited of London, United Kingdom, represented by Stobbs IP Limited, United Kingdom. The Respondent is Mao Guo of Hong Kong, China. 2. The Domain Name and Registrar The disputed domain name <allsaintsglossy.com> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 20, 2018. On December 21, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 24, 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 December 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 December 31, 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 January 4, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 24, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 25, 2019. The Center appointed Peter Wild as the sole panelist in this matter on January 31, 2019. 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 owns the trademark ALLSAINTS in relation to a range of goods, including clothing and footwear. The trademark is registered in a wide range of countries, including Hong Kong, China, the Respondent’s domicile (Reg. Nr. 301068598, filed March 10, 2008, registered September 4, 2008). The Complainant owns, among other domain names, <allsaints.com> which it acquired in 2009 and has been using as its main website since. The Complainant runs successful and well-known international fashion business under the brand ALLSAINTS. The disputed domain name has been registered on November 8, 2018. It resolves to a website which shows the trademark ALLSAINTS prominently and in a script identical to the script which the Complainant uses on its website. The Respondent’s website offers clothing and footwear for sale at a significant discount. It is unclear from the submission whether the goods are really for sale and whether they are original goods of the Complainant. 5. Parties’ Contentions A. Complainant According to the Complainant, its ALLSAINTS mark enjoys high reputation as a result of extensive and long use. It is protected on an international level with various registered trademarks. Allsaints is a British fashion retailer founded in 1994 and incorporated in October 2000. The brand name is now used for a business which sells menswear, womenswear apparel, footwear, and accessories in 232 stores, across 27 countries. Allsaints acquired their main commercial website “www.allsaints.com” in 2009 and commenced use of it to market their products later that year. The Complainant claims that it now delivers to over 200 countries and that visits to the “www.allsaints.com” website in 2018 totaled nearly 28 million, and its global mailing list includes 760,000 members. The Complainant also alleges that it is well known through their extensive social media presence, shown by large number of followers on each of the major platforms and that as a consequence of all this, the ALLSAINTS mark has achieved a high level of recognition worldwide. According to the Complainant, the word “glossy” in the disputed domain name does nothing to distinguish the disputed domain name from the Complainant’s trademarks, due to its positioning within the disputed domain name and its inherently weak meaning in the fashion space, and therefore the disputed domain name is confusingly similar to the Complainant’s trademark. The Complainant contends that the Respondent does not have any rights or legitimate interests in the disputed domain name. The Respondent is not and has never been a licensee of the Complainant or otherwise authorized by the Complainant to use the Complainant’s ALLSAINTS mark. The Complainant submits that there is clear evidence that the Respondent registered and is using the disputed domain name in bad faith with knowledge of the Complainant’s rights in its ALLSAINTS mark, considering the reputation of the Complainant’s ALLSAINTS mark. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant’s registrations are sufficient to establish its rights in the ALLSAINTS mark, which was also recognized by earlier UDRP panels, see e.g ., All Saints Retail Limited v. Name Redacted , WIPO Case No. D2018-0698 ; All Saints Retail Limited v. Name Redacted , WIPO Case No. D2017-2492 ; All Saints Retail Limited v. Wang Ya Ya , WIPO Case No. D2016-1809 ; and All Saints Retail Ltd. v. Wang Liqun , WIPO Case No. DCO2015-0041 . The additional element GLOSSY does not have an influence on the assessment under the first element. See section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”): “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”. The Panel therefore holds that the first element of the Policy is met. B. Rights or Legitimate Interests The Panel has been given limited information about the Respondent’s website, in particular regarding the Complainant’s allusions to the possibility that the website under the disputed domain name does not sell any of the offered goods at all or that they are non-original or counterfeited goods. Without any direct claims to these points and with no supporting evidence, this Panel suggests to address the issue on the basis that the Respondent markets the Complainant’s goods, but not as an authorized reseller. The Complainant must establish a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP. The Respondent is not known by the disputed domain name and claims no connection with or authorization from the Complainant. The Complainant claims that it did not grant a license or any other right to use and register the disputed domain name to the Respondent. The disputed domain name resolves to an active website at “www.allsaintsglossy.com”. The website shows that the content available includes use of the Complainant’s trademark ALLSAINTS, as well as use of the Complainant’s images. The Complainant claims that the goods may not be offered for real, but may only be used to lure consumers to the false site with the promise of significant reductions in the cost of products to obtain personal data from customers, including financial data, amounting to fraudulent use of the disputed domain name. The Complainant also alludes that the goods offered, if they are sold at all, may be non-original or counterfeited goods, in light of the significantly reduced prices. Both these allegations are not supported by evidence, so that this Panel is minded to give the Respondent the benefit of doubt and assume that the goods are for sale and the original goods and the Respondent is running a reseller website under the disputed domain name. In such case, the well established elements of the Oki Data decision are to be applied, ( Oki Data Americas, Inc. v. ASD, Inc. , WIPO Case No. D2001-0903 .) a) The Respondent must actually be offering the goods or services at issue. The website under the disputed domain name appears to offer such goods for sale. b) The Respondent must use the site to sell only the trademarked goods; otherwise, it could be using the trademark to bait Internet users and then switch them to other goods. There is no indication that other, third party goods are sold on the website under the disputed domain name. c) The site must accurately disclose the registrant’s relationship with the trademark owner; it may not, for example, falsely suggest that it is the trademark owner, or that the website is the official site, if, in fact, it is only one of many sales agents. The website under the disputed domain name shows no such disclaimers or definitions. To the contrary, it is set up in a way and fashion that suggests there is an official connection to the Complainant’s business. See, R.T. Quaife Engineering, Ltd. and Autotech Sport Tuning Corporation d/b/a Quaife America v. Bill Luton , WIPO Case No. D2000-1201 . d) The Respondent must not try to corner the market in all domain names, thus depriving the trademark owner of reflecting its own mark in a domain name. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr. , WIPO Case No. D2000-1525 (“a single distributor is extremely unlikely to have a legitimate interest in precluding others from using numerous variants on a mark”). There is no evidence on file that the Respondent is trying to corner the market. Overall, and in particular in light of point c) above, the Panel believes it to be likely that Internet users seeing the Domain Name will believe it to be a domain name of or associated with the Complainant. The Respondent did not comment on the Complaint. Moreover, the Respondent registered the disputed domain name using a privacy shield. The Panel can consequently not recognize any rights or legitimate interests on the Respondent’s side. With the evidence on file, this Panel is satisfied that the second element of the Policy is met. C. Registered and Used in Bad Faith On November 8, 2018, the date of the registration of the disputed domain name, the Complainant’s domain name and trademark ALLSAINTS were already registered and well known. Given the well-known character of the Complainant’s trademark, it is inconceivable that the Respondent did not know or at least could and should have known with very little research of the existence of the Complainant’s earlier rights. In addition, the disputed domain name’s website offers clothing articles and shoes, and displays the Complainant’s trademark ALLSAINTS in the same script which the Complainant is using on its website under “www.allsaints.com”. This is strong evidence that the Respondent was well aware of the Complainant and its business and registered the disputed domain name to take unfair advantage of the Complainant’s goodwill and reputation. With all the circumstances of this case, the Panel finds there is bad faith registration pursuant to the Policy as the Respondent “knew or should have known” of the Complainant’s trademark rights at the time of registration of the disputed domain name. See, Myer Stores Limited v. Mr. David John Singh , WIPO Case No. D2001-0763 ; L’Oréal v. Li Qian, Fast Hand Limited and Lisa , WIPO Case No. D2011-0868 ; NBC Universal Inc. v. Szk.com / Michele Dinoia , WIPO Case No. D2007-0077 ; and ALSTOM v. Domain Investments LLC , WIPO Case No. D2008-0287 . The Panel therefore finds that the disputed domain name was registered in bad faith. As to use in bad faith, the panel refers to the analysis above under 6. B. Rights or Legitimate Interests, which leads to the Panel’s view that the disputed domain name is used in bad faith. In summary, and taking into account the well-known status of the Complainant’s trademark, this indicates an attempt to benefit from the reputation of the Complainant’s trademark and to attract Internet users for commercial gain, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s websites or of the services offered on the Respondent’s websites. The confusion is strengthened by the use of the ALLSAINTS trademark without any disclaimer of association with the Complainant and in the script which the Complainant is using. The disputed domain name therefore is being used in bad faith in accordance with 4(b)(iv) of the Policy. For all these reasons, the Panel sees the third element of the Policy 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, <allsaintsglossy.com> be transferred to the Complainant. Peter Wild Sole Panelist Date: February 14, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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