Westmore · UDRP DecisionEllekidz.com
The Panel ordered transfer of <ellekidz.com>. It found the domain confusingly similar to the Complainant’s ELLE mark because it incorporated ELLE in its entirety with the descriptive term “kidz.” The prior website imitated an ELLE magazine cover, presented itself as connected with ELLE, and was used in communications concerning paid children’s photo shoots. Those circumstances established the absence of rights or legitimate interests and registration and use in bad faith for commercial gain through confusion and deception.
The timeline behind ellekidz.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 ellekidz.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how website content can supply decisive evidence across both the second and third UDRP elements. The imitation magazine cover, claims of association with a leading fashion magazine, and photo-shoot solicitations demonstrated that the domain was selected to target ELLE rather than for an independent descriptive purpose. The later registrar parking page did not displace the significance of the documented prior 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 Hachette Filipacchi Presse v. Shruti Shah Case No. D2021-1563 1. The Parties The Complainant is Hachette Filipacchi Presse, France, represented by Novagraaf France, France. The Respondent is Shruti Shah, India. 2. The Domain Name and Registrar The disputed domain name <ellekidz.com> (the “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 May 19, 2021. On May 19, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 20, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 26, 2021, 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 May 26 and 27, 2021. 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 May 28, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 17, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 20, 2021. The Center appointed Ian Lowe as the sole panelist in this matter on July 2, 2021. 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 is a leader in the fashion magazine field. It publishes the magazine ELLE which was first issued in 1945 and now has 45 editions around the world. The Complainant is the proprietor of a number of registered trademarks comprising ELLE, including India trademark number 472237 in respect of the stylised word ELLE registered on May 14, 1987, and International trademark number 546813 ELLE registered on July 10, 1989, designating a number of territories including the United Kingdom, the European Union, and the United States of America. The Complainant is also the owner of a number of domain names including <elle.com> and <elle.in>. The Domain Name presently resolves to a parking page provided by the Registrar. However, at the time of preparation of the Complaint, the Domain Name resolved to a website featuring the Complainant’s ELLE trademark and an imitation of the front cover of the Complainant’s ELLE magazine. An “About Us” section stated that “We are one of the world’s first fashion magazines”. The website indicated that the operators were looking for children to model “the world’s topmost brands” and was referred to in communications, purporting to be from “Elle online”, with Indian consumers in connection with proposed photo shoots with children. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its ELLE trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings For this Complaint to succeed in relation to the Domain Name the Complainant must prove that: (i) the Domain Name is confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the 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. A. Identical or Confusingly Similar The Complainant has uncontested rights in its ELLE trademarks, both by virtue of its trademark registrations and as a result of the goodwill and reputation acquired through its widespread use of the mark over many years. Ignoring the generic Top-Level Domain (“gTLD”) “.com”, the Domain Name comprises the entirety of the Complainant’s ELLE trademark together with the word “kidz” which would naturally be taken to mean “kids”. In the view of the Panel, the addition of this word does not prevent a finding of confusing similarity between the Domain Name and the Complainant’s mark. Accordingly, the Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests The Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in respect of the Domain Names. The Domain Name was being used, at least until the time of filing the Complaint, for a website featuring an imitation of the front cover of the Complainant’s ELLE magazine, and purported to be operated by the Complainant. The Respondent has never been licensed or otherwise authorized by the Complainant to use its ELLE trademark or to purport to operate under that name. The Respondent appears to have used the website at the Domain Name to attempt to legitimise charging Indian consumers for their children to be used in photo shoots. The Panel cannot conceive of any legitimate use to which the Respondent could put the Domain Name. The Respondent has chosen not to respond to the Complaint to explain its use of the Domain Name or to take any other steps to counter the prima facie case established by the Complainant. In the circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith In light of the use to which the Respondent has put the Domain Name, there is no doubt that the Respondent had the Complainant and its rights in the ELLE mark in mind when it registered the Domain Name. The only legitimate inference is that the Respondent registered the Domain Name for commercial gain with a view to taking unfair advantage of the Complainant’s rights in the mark. It has used the Domain Name to confuse Internet users into believing that the Domain Name was being operated by or authorized by the Complainant for legitimate purposes related to the Complainant’s activities and to deceive Indian consumers into paying for their children to take part in photo shoots, believing them to be organised on behalf of the Complainant. Accordingly, the Panel finds that the Domain Name has been registered and is being used in bad faith. 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 <ellekidz.com> be transferred to the Complainant. Ian Lowe Sole Panelist Date: July 16, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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