Westmore · UDRP DecisionKaposoldes.online
The Panel ordered transfer of <kaposoldes.online>. It found the domain confusingly similar to the Complainant’s KAPORAL mark despite reproducing only part of the mark and adding the French term “soldes” (“sales”). The Respondent lacked rights or legitimate interests because the domain was used for an unauthorized online shop displaying the Complainant’s trademark and logo and offering apparently competing goods. The same use was found intentionally to create confusion for commercial gain and therefore established bad-faith registration and use under paragraph 4(b)(iv) of the Policy.
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This decision illustrates how website content can reinforce a confusing-similarity finding where the domain reproduces only part of a trademark. The same impersonating commercial presentation also carried substantial weight under the rights-or-legitimate-interests and bad-faith elements. The Panel’s principal bad-faith basis was the confusing commercial use under paragraph 4(b)(iv), with default, privacy-service use, and deficient contact information serving as corroborative rather than standalone factors.
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 Kaporal Groupe v. Redacted for Privacy, Withheld for Privacy Purposes Privacy Service Provided by Withheld for Privacy ehf / Neville Berger Case No. D2021-3109 1. The Parties The Complainant is Kaporal Groupe, France, represented by Novagraaf France, France. The Respondent is Redacted for Privacy, Withheld for Privacy Purposes Privacy Service Provided by Withheld for Privacy ehf, Iceland / Neville Berger, United States of America (“United States” or “USA”). 2. The Domain Name and Registrar The disputed domain name <kaposoldes.online> is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 21, 2021. On September 21, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 21. 2021, 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 September 23, 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 amendment to the Complaint on September 28, 2021. The Center verified that the Complaint together with the amendment to 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 1, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 21, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 23, 2021. The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on November 1, 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 in the fashion apparel industry. The Complainant owns among others the following trademarks (Annex 4 to the Complaint): - European Union trademark registration No. 005871652 for the word mark KAPORAL, registered on January 29, 2009,, in Classes 3, 9, 14, 16, 18, 24 and 25; and - French trademark registration No. 4050016 for the device mark KAPORAL, filed on November 26, 2013, and registered onthe same date, in Classes 3, 9, 14, 16, 18, 24 and 25. The disputed domain name was registered on January 7, 2021, and presently resolves to an active online shop depicting the Complainant’s trademark and logo in connection with clothing and accessories similar to those of the Complainant. 5. Parties’ Contentions A. Complainant The Complainant claims to be the owner of the KAPORAL trademark, created in 2004 around jeans and presently used in connection with clothes in general as well as footwear and a large range of accessories. In addition to the online shop available at <kaporal.com>, the Complainant’s products are sold through a network of more than 1,600 multi-brand retailers, including more than 100 boutiques and around thirty franchises, in France and abroad. Under the Complainant’s view, the disputed domain name partially reproduces the Complainant’s trademark yet maintaining visual, aural and intellectual similarities with the addition of the French word “soldes” which can be translated in English as “sales”. In addition to that, the likelihood of confusion is strengthened by the reproduction of the Complainant’s logo and products on the online shop available at the disputed domain name. Regarding the absence of the Respondent’s rights or legitimate interests, the Complainant argues that: (i) the Respondent has not been authorized by the Complainant to use its trademarks, nor has it been licensed or is there a partnership with the Complainant; being it uncontested that the Complainant has no connection or affiliation with the Respondent; (ii) the Respondent has no rights over the KAPO or KAPOSOLDES trademarks (Annex 5 to the Complaint and Annexes 2a, 3a, 4a and 5a to the Amended Complaint); (iii) the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, rather impersonating the Complainant; and (iv) the Respondent has not been commonly known by the disputed domain name. As to the registration and use of the disputed domain name in bad faith, the Complainant states that: (i) the Respondent knew of the Complainant’s trademark when registering the disputed domain name given that the Respondent is using the disputed domain name to impersonate the Complainant, unduly reproducing the Complainant’s logo, products and layout of the Complainant’s official website; and (ii) the website available at the disputed domain name does not identify the Respondent what might lead any Internet user into concluding that the disputed domain name is associated with the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy sets forth the following three requirements, which have to be met for this Panel to order the transfer of the disputed domain name to the Complainant: (i) the disputed domain name is identical or 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 disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. The Complainant must prove in this administrative proceeding that each of the aforementioned three elements is present in order to obtain the transfer of the disputed domain name. In accordance with paragraph 14(a) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint. A. Identical or Confusingly Similar The Complainant has established rights over the KAPORAL trademark. The disputed domain name consists of the partial reproduction of the Complainant’s KAPORAL trademark, with the addition of the French generic term “soldes” (“sales”). Furthermore, the use of the disputed domain name in connection with a webpage purportedly selling the Complainant’s products and reproducing the Complainant’s logo affirms a finding of confusing similarity between the disputed domain name and the Complainant’s trademark. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“ WIPO Overview 3.0 ”), sections 1.7 and 1.15. For the reasons above, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a nonexclusive list of circumstances that may indicate the Respondent’s rights or legitimate interests in the disputed domain name. These circumstances are: (i) before any notice of the dispute, the Respondent’s 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 (as an individual, business, or other organization) has been commonly known by the disputed domain name, in spite of not having acquired trademark or service mark rights; or (iii) the Respondent is making a legitimate noncommercial 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. The Respondent has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain name. Nevertheless, the burden of proof is still on the Complainant to make at least a prima facie case against the Respondent under the second UDRP element. In that sense, and according to the evidence submitted, the Complainant has made a prime facie case against the Respondent showing that the Respondent has not been commonly known by the disputed domain name and neither has been authorized by the Complainant to use its trademarks, nor has it been licensed or is there a partnership with the Complainant; being it uncontested that the Complainant has no connection or affiliation with the Respondent. Also according to the evidence submitted by the Complainant, the use made of the disputed domain name in connection with an online shop reproducing the Complainant’s trademark and logo and selling what appears competing goods does not constitute a bona fide offering of goods or services, nor a legitimate noncommercial or fair use of the disputed domain name in these circumstances. In fact, the Respondent intents for commercial gain to mislead consumers or to tarnish the trademark at issue. Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name. C. Registered and Used in Bad Faith The Policy indicates in paragraph 4(b)(iv) that bad faith registration and use can be found in respect of a disputed domain name, where a respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s Website or other online location, by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Website or location or of a product or service on the website or location. In this case, both the registration and use of the disputed domain name in bad faith can be found pursuant to Policy, paragraph 4(b)(iv) in view of the reproduction of the Complainant’s trademark and logo at the online shop that is available at the webpage relating to the disputed domain name, which creates a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement thereof. Other factors that corroborate the Panel’s finding of bad faith of the Respondent are: a. the absence of a formal Response by the Respondent; b. the choice to retain a privacy protection service so as to conceal the Respondent’s identity; and c. the indication of what appears to be false or incomplete contact details provided in WhoIs information relating to the disputed domain name, Written Notice communication not able to be delivered to it by courier. For the reasons above, the Respondent’s conduct has to be considered, in this Panel’s view, as bad faith registration and use of the disputed domain name. 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 <kaposoldes.online> be transferred to the Complainant. Wilson Pinheiro Jabur Sole Panelist Date: November 15, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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