Administrative panel decision im production V. 张润发/Simeon Balabanov




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ARBITRATION
AND
MEDIATION CENTER




ADMINISTRATIVE PANEL DECISION

IM Production v. 张润发/Simeon Balabanov

Case No. D2015-1285



1. The Parties

The Complainant is IM Production of Paris, France, represented by Cabinet Vittoz, France.


The Respondent is 张润发/Simeon Balabanov of China.


2. The Domain Name and Registrar

The disputed domain name is registered with Xin Net Technology Corp. (the “Registrar”).




3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 24, 2015. On July 24, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 27, 2015, 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.


On July 27, 2015, the Center sent an email communication to the parties in both Chinese and English regarding the language of the proceeding. On July 27, 2015, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint in both Chinese and English, and the proceeding commenced on August 10, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 30, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 31, 2015.
The Center appointed Matthew Kennedy as the sole panelist in this matter on September 11, 2015. 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 French fashion Company that owns and uses the ISABEL MARANT trademarks for shoes, ready-to-wear, jewelry and couture collections. The designer and president of the Complainant is named Isabel Marant. She has used her eponymous trademark since 1991. The Complainant’s products are distributed throughout the world, including China, the United States of America and the European Union.


The Complainant is the owner of trademark registrations for the mark ISABEL MARANT with respect to goods in multiple classes, including footwear. These include International Registrations Nos. 717113 and 921017, initially registered in 1999 and 2006, respectively, and protected in many countries, including China. They also include Community Trademark Registrations Nos. 001035534 and 003010048, initially registered in 2000 and 2005, respectively, and United States Trademark Registrations Nos. 2367858 and 3222267, initially registered in 2000 and 2007, respectively.
According to the Registrar’s WhoIs database, the disputed domain name was registered on July 9, 2015. The Registrar confirmed that the name of the registrant is 张润发/Simeon Balabanov. His contact information combines parts of a French street address and the city of Beijing, China. The disputed domain name resolves to a website in English that displays the ISABEL MARANT trademark and sells footwear.



5. Parties’ Contentions

A. Complainant

The Complainant owns the ISABEL MARANT trademarks set out above as well ISABEL MARANT ETOILE trademarks. The Complainant also owns many domain names including the element “isabelmarant”. The disputed domain name incorporates the Complainant’s ISABEL MARANT in its entirety and adds only the year 2015, which is internationally understood. Therefore, the disputed domain name is confusingly similar to the trademark.


The Complainant has never authorized the Respondent to register any domain name phonetically identical or confusingly similar to its trademark. The Respondent is not commonly known by the disputed domain name. To the best of the Complainant’s knowledge, the Respondent has never conducted any legitimate business under the disputed domain name. The Complainant is in no way associated or affiliated with the Respondent. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
The disputed domain name resolves to a website used for selling Isabel Marant products that the Complainant has identified as counterfeit. The Respondent uses the disputed domain name to encourage consumers to believe he is connected to the 2015 official website of the Complainant. The Respondent has deliberately registered and used the disputed domain name to attract Internet users for financial gain by creating confusion with the Complainant’s mark when he is not an authorized retailer and has no relationship with the Complainant.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.




6. Discussion and Findings


6.1 Language of this Proceeding

Paragraph 11(a) of the Rules provides that “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding”. The Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.


The Complainant requests that the language of the proceeding be English. Its arguments are that the Complainant does not understand Chinese; the disputed domain name is made up of Latin characters; and the disputed domain name resolves to a website in English.
The Panel notes that all the Center’s email communications with the parties have been in both Chinese and English. The Respondent was given an opportunity to object to the Complainant’s request that English be the language of the proceeding but the Respondent did not in fact object nor did he express any wish to respond to the Complaint.
Paragraph 10(b) and (c) of the Rules require the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding take place with due expedition. Prior UDRP panels have decided that the choice of language of the proceeding should not create an undue burden for the parties. (See, for example, Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293).
The Panel observes that in this proceeding the Complaint was filed in English. The Respondent’s website is also in English and it is therefore reasonable to believe that he is familiar with that language. The Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay.
Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English.

6.2 Analysis and Findings


Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements:



(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.

A. Identical or Confusingly Similar

Based on the evidence submitted, the Panel finds that the Complainant has registered trademark rights in the ISABEL MARANT trademark. The trademark was registered prior to the domain name registration.


The disputed domain name incorporates the trademark ISABEL MARANT in its entirety, merely omitting the space between the two words and adding “2015”. The additional element is merely a numeral, indicating a year. The mere addition of a generic element lacks the capacity to distinguish the disputed domain name from the Complainant’s trademark. (See Hoffmann-La Roche Inc. v. Wei-Chun Hsia, WIPO Case No. D2008-0923). Further, a generic Top-Level Domain (“gTLD”) suffix such as “.net” has no capacity to distinguish a domain name from a trademark. (See Lego Juris A/S v. Chen Yong, WIPO Case No. D2009-1611; Dr. Ing. H.c. F. Porsche AG v. zhangleiWIPO Case No. D2014-0080). In sum, the only distinctive element of the disputed domain name is the Complainant’s ISABEL MARANT trademark.
Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the Respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:


(i) before any notice to [the Respondent] 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, even if [the Respondent has] acquired no 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.
As regards the first circumstance, the disputed domain name is being used with a website that offers for sale what is alleged to be Isabel Marant footwear. The website does not appear to display products from any other source. The Complainant states that it has no connection whatsoever with the Respondent. The Respondent did not respond. Whether or not the products are counterfeit or genuine, the Panel notes that the website does not accurately disclose the Respondent’s lack of any relationship to the Complainant. Given that the disputed domain name is confusingly similar to the Complainant’s trademark, the Panel considers that the Respondent’s website is very likely to confuse Internet users. These facts show that the Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services. (See Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903). Accordingly, the Panel does not find that the Respondent’s use falls within the first circumstance of paragraph 4(c) of the Policy.
As regards the second circumstance, the Respondent’s Chinese name is 张润发 and his foreign name is Simeon Balabanov. None of the evidence submitted indicates that the Respondent has been commonly known by the disputed domain name as foreseen in the second circumstance of paragraph 4(c) of the Policy.
As regards the third circumstance, the website with which the disputed domain name is used offers footwear for sale. The Respondent is clearly making a commercial use of the disputed domain name, with intent for commercial gain, which is not a use covered by the third circumstance of paragraph 4(c) of the Policy.
In summary, the Panel considers that the Complainant has discharged its burden of proof that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The burden now shifts to the Respondent to show that he does have some rights or legitimate interests, but the Respondent did not respond to the Complaint.
Therefore, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows:


“(iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] web site or location or of a product or service on [the respondent’s] web site or location.”
The evidence submitted by the Complainant shows that the website with which the disputed domain name is used displays the Complainant’s trademark and offers for sale what is alleged to be the Complainant’s footwear. The Respondent only registered the disputed domain name in 2015, several years after the Complainant obtained its trademark registrations. This indicates that the Respondent intentionally chose to register the Complainant’s trademark and use it as a domain name.
The Respondent has no connection with the Complainant yet the dominant element of the disputed domain name is identical to the Complainant’s trademark. Given the facts set out above under point 6.2.B. regarding what the website displays and offers for sale, and the non-disclosure of its lack of a relationship to the Complainant, the Panel considers that the Respondent’s use of the disputed domain name creates a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of the products on that website. Moreover, the Respondent provided false contact information in his domain name registration.
Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) 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 be transferred to the Complainant.



Matthew Kennedy

Sole Panelist



Date: September 22, 2015



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