Westmore · UDRP DecisionPandoraturkey.com
The three-member Panel ordered transfer of <pandoraturkey.com>. It found the domain confusingly similar to the Complainant’s PANDORA trademark because it incorporated the mark with the geographic term “Turkey.” The Respondent lacked rights or legitimate interests, and the domain was registered and used in bad faith through a Turkish-language online shop that mimicked the Complainant’s website and created the impression of an official or authorized Turkish outlet. The Panel did not determine whether the products offered were genuine or counterfeit.
The timeline behind pandoraturkey.com
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The decision illustrates that a trademark combined with a country name can reinforce an impression of an official local-market website rather than distinguish the domain. It also shows that bad faith may be established from deliberate website mimicry and commercial confusion without a conclusive finding that the goods are counterfeit.
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 Pandora A/S v. Yan Li Case No. D2019-1273 1. The Parties The Complainant is Pandora A/S, Denmark, represented by C.V. React U.A, Netherlands. The Respondent is Yan Li, China. 2. The Domain Name and Registrar The disputed domain name <pandoraturkey.com> (the “Disputed Domain Name”) 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 June 4, 2019. On June 4, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On June 5, 2019, 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 June 7, 2019. In accordance with the Rules, paragraph 5(a), the due date for Response was June 27, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 28, 2019. The Center appointed Nick J. Gardner, Kar Liang Soh and Kaya Köklü as panelists in this matter on July 31, 2019. The Panel finds that it was properly constituted. Each member of 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 relevant facts are straightforward and can be summarized very briefly as follows. The Complainant is a Danish company. It carries on business on a worldwide basis in the production and sale of jewelry (especially charms and bracelets). It has done so for many years. It does so under and by reference to the name “Pandora”. The Complainant is active in more than 100 countries on six continents through around 7,800 points of sale, including more than 2,400 concept stores. The Complainant has registered the word “Pandora” in many countries throughout the world – for example European Union trademark PANDORA. The earliest of these registrations was dated April 18, 2007 - registration No. 003397858. These trademarks are referred to in this decision as the “PANDORA trademark”. The Complainant promotes its products via its website at “www.pandora.net”. The Respondent registered the Disputed Domain Name on November 21, 2018. The Respondent is using the Disputed Domain Name in connection with a website which provides an online shop that advertises for sale various purported PANDORA products. The site is in Turkish but mimics the look and feel of the Complainant’s own website. 5. Parties’ Contentions A. Complainant The Complainant’s contentions are straightforward and can be summarized as follows: The Disputed Domain Name is confusingly similar to its trademark PANDORA in which it clearly has rights. Addition of the geographical indication “Turkey” does not distinguish the Disputed Domain Name. The Complainant says that the Respondent’s selection of the Disputed Domain Name, which wholly incorporates the PANDORA trademark cannot be a coincidence as “Pandora” is not a descriptive or generic term; it is a famous and well-known trademark. The Complainant says the Respondent has no rights or legitimate interests in the term “pandora”. In consequence, the Complainant alleges the Disputed Domain Name was registered and is being used in bad faith. The content of the Respondent’s website suggests an affiliation or connection with the Complainant which is not the case. The Respondent is not an authorized distributor of the Complainant’s products and the Complainant suggests the products offered for sale by the Respondent may be counterfeit. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Preliminary Matters The Panel notes that no communication has been received from the Respondent. However given the Complaint and Written Notice were sent to the relevant addresses disclosed by the Registrar then the Panel considers that this satisfies the requirement in paragraph 2(a) of the Rules to “employ reasonably available means calculated to achieve actual notice”. Accordingly, the Panel considers it is able to proceed to determine this Complaint and to draw inferences from the Respondent’s failure to file any Response. While the Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see, e.g ., Verner Panton Design v. Fontana di Luce Corp , WIPO Case No. D2012-1909 ). Substantive Matters To succeed, in accordance with paragraph 4(a) of the Policy, the Complainant must satisfy the Panel that: (i) The Disputed Domain Name is identical with or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) The Respondent has no rights or legitimate interests in respect of 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 Panel finds that the Complainant has rights in the trademark PANDORA. The filed evidence establishes the Complainant’s products have been sold on a substantial sale on a worldwide basis under this trademark. The Complainant has a wide range of registered trademarks for the word “Pandora”. The Disputed Domain Name is confusingly similar to the PANDORA trademark. Previous UDRP panels have consistently held that domain names are identical or confusingly similar to a trademark for purposes of the Policy, “when the domain name includes the trademark, or a confusingly similar approximation, regardless of the other terms in the domain name” ( Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale , WIPO Case No. D2000-0662 ). It is established that, where a mark is the distinctive part of a disputed domain name, the disputed domain name is considered to be confusingly similar to the registered mark ( DHL Operations B.V. v. DHL Packers , WIPO Case No. D2008-1694 ). It is also established that the addition of other terms (such as here the country name “Turkey”) does not prevent a finding of confusing similarity between the Disputed Domain Name and the Complainant’s trademark ( Quixtar Investments, Inc. v. Dennis Hoffman , WIPO Case No. D2000-0253 ; PRL USA Holdings, Inc. v. Spiral Matrix , WIPO Case No. D2006-0189 ). Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s trademark. Accordingly, the first condition of paragraph 4(a) of the Policy has been fulfilled. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name: (i) before any notice to the Respondent of the dispute, use of, or demonstrable preparations to use, the Disputed Domain Name or a name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services; or (ii) the Respondent has been commonly known by the Disputed Domain Name, even if the Respondent has acquired no trademark or service mark rights; or (iii) the Respondent is making a legitimate non-commercial or fair use of the Disputed Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. None of these apply in the present circumstances. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the PANDORA trademark. The Complainant has prior rights in the PANDORA trademark which precede the Respondent’s registration of the Disputed Domain Name. The Complainant has therefore established a prima facie case that the Respondent has no rights and legitimate interests in the Disputed Domain Name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the Disputed Domain Name (see for example Do The Hustle, LLC v. Tropic Web , WIPO Case No. D2000-0624 ; Croatia Airlines d.d. v. Modern Empire Internet Ltd ., WIPO Case No. D2003-0455 ). The Panel finds that the Respondent has failed to produce any evidence to establish its rights or legitimate interests in the Disputed Domain Name. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and the second condition of paragraph 4(a) of the Policy has been fulfilled. C. Registered and Used in Bad Faith In the present circumstances, the distinctive nature of the PANDORA trademark, and the evidence as to the extent of the reputation the Complainant enjoys in the PANDORA trademark, and the confusingly similar nature of the Disputed Domain Name to the PANDORA trademark, and the lack of any explanation from the Respondent as to why it registered the Disputed Domain Name lead the Panel to conclude the registration and use was in bad faith. In the present case, the Panel concludes the Respondent was aware of the Complainant’s PANDORA trademark when it registered the Disputed Domain Name. The Panel concludes that the Respondent selected the Disputed Domain Name because of its similarity with the Complainant’s PANDORA trademark. The addition of the geographical term “Turkey” suggests to the Panel that the Respondent was deliberately choosing a name with a close and confusing connection to the Complainant’s name. It is not clear to the Panel whether or not products offered by the Respondent are genuine Pandora products. The Complaint states that “After Complainant conducted a test purchase, the goods appeared to be counterfeit goods” which seems somewhat equivocal. However, the manner in which the website resolved from the Disputed Domain Name mimicked the Complainant’s website is unequivocal in demonstrating the Respondent’s efforts to associate goods of potentially questionable character on the website with the Complainant. Under paragraph 4(b)(iv) of the Policy evidence of registration and use in bad faith is shown if “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location”. The Panel considers this is the case here. The Respondent’s website clearly gives the impression that it is that of the Complainant or is authorised or approved by the Complainant. It gives the impression no doubt deliberately that it is an official outlet of the Complainant directed at the Turkish market. Further, the Panel notes the Respondent has not filed a Response and hence has not availed itself of the opportunity to present any case of legitimate use that it might have. The Panel infers that none exists. As a result, the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith. Accordingly, the third condition of paragraph 4(a) of the Policy has 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 Disputed Domain Name <pandoraturkey.com> be transferred to the Complainant. Nick J. Gardner Presiding Panelist Kar Liang Soh Panelist Kaya Köklü Panelist Date: August 8, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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