KERING v. c/o WHOIStrustee.com Limited / Registrant of ppr.xn--fiq228c5hs
Claim Number: FA1407001570401
Complainant is KERING (“Complainant”), represented by Sophie MARC, France. Respondent is c/o WHOIStrustee.com Limited / Registrant of ppr.xn--fiq228c5hs (“Respondent”), New Zealand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <ppr.中文网>, registered with 1Api Gmbh (R3197-Agrs).
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 18, 2014; the National Arbitration Forum received payment on July 25, 2014.
On July 22, 2014, 1Api Gmbh (R3197-Agrs) confirmed by email to the National Arbitration Forum that the <ppr.中文网> domain name is registered with 1Api Gmbh (R3197-Agrs) and that Respondent is the current registrant of the name. 1Api Gmbh (R3197-Agrs) has verified that Respondent is bound by the 1Api Gmbh (R3197-Agrs) registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 30, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 19, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@ppr.中文网. Also on July 30, 2014, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 21, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a French apparel and accessories company with an ensemble of brands, including Gucci, Bottega Veneta, Saint Laurent, Puma, and others. Complainant owns numerous trademark registrations for the PPR mark in the U.S., the European Union, Asia, and elsewhere.
Complainant contends that the disputed domain name <ppr.中文网> is identical to its PPR mark. Complainant contends further that Respondent lacks rights or legitimate interests in the disputed domain name, noting that Complainant has not authorized this use of its mark, and that Respondent does not appear to be making active use of the domain name.
Finally, Complainant contends that the disputed domain name was registered in bad faith. In support thereof, Complainant argues that Respondent must have been aware of Complainant’s mark when it registered the domain name given the notoriety of Complainant’s group of companies, which includes many well-known trademarks, and that Respondent must have intended to benefit by creating consumer confusion. Complainant reiterates that Respondent is not actively using the domain name, and argues that this is indicative of a bad faith registration intended to prevent Complainant from reflecting its PPR trademark in a domain name in the Chinese extension “.中文网”.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights, and that Respondent lacks rights or legitimate interests in respect of the disputed domain name. The Panel further finds, however, that Complainant has failed to prove that the disputed domain name was registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The disputed domain name is identical to Complainant’s registered mark PPR, but for the addition of the “.中文网” top-level domain. The top-level domain is normally disregarded for purposes of assessing identicality or similarity under paragraph 4(a)(i) of the Policy, especially when it is a generic extension such as “.com”. Isleworth Land Co. v. Lost In Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002). Since the “.中文网” top-level domain translates to “website,” the Panel considers it appropriate to apply that rule here, and finds that the disputed domain name is identical to Complainant’s PPR mark for purposes of the Policy.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name corresponds to Complainant’s mark, and was registered without Complainant’s authorization by an entity that has declined to identify itself. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
In order to prevail under the Policy, Complainant must show that the domain name “has been registered and is being used in bad faith.” Policy ¶ 4(a)(iii). These requirements are conjunctive; both registration and use in bad faith must be proved. See, e.g., Kanal, Inc. v. Domain Admin, FA 1478238 (Nat. Arb. Forum Feb. 12, 2013) (contrasting conjunctive rule in UDRP with disjunctive rule in U.S. statute); Guru Denim Inc. v. Ibrahim Ali Ibrahim Abu-Harb, D2013-1324 (WIPO Sept. 27, 2013) (noting that a majority of UDRP panelists subscribes to this conjunctive view of paragraph 4(a)(iii)).
Complainant here alleges only bad faith registration, not bad faith use; and even that claim is tenuous. Complainant owns several well-known brands, but offers no evidence that Complainant itself or its PPR mark is equally well known, or that the three-letter combination PPR is exclusively associated with Complainant—propositions that seem dubious at best. See, e.g., Electronic Arts Inc. v. Abstract Holdings Int’l LTD / Sherene Blackett, FA 1415905 (Nat. Arb. Forum Jan. 4, 2012) (declining to infer bad faith in registration of <ssx.com>, it being “comprised entirely of a common term that has many meanings apart from use in Complainant’s SSX mark”); Project Management Institute, Inc. v. Kirk Shafonsky, FA 820322 (Nat. Arb. Forum Jan. 16, 2007) (denying claim on grounds that domain name <pmi.com> “is comprised only of three letters, which in theory may stand for several different things”); Kis v. Anything.com Ltd, D2000-0770 (WIPO Nov. 20, 2000) (inferring that domain name <kis.com> was selected because of its length rather than because of correspondence to trademark).
To have registered the domain name in bad faith, Respondent must have been aware of Complainant or Complainant’s mark when it registered the domain name, and the registration must in some way have been targeted at Complainant or the mark. J. C. Penney Corporation, Inc. v. John Bonk / Land Merchandising Corp., FA 1554732 (Nat. Arb. Forum May 21, 2014). Complainant’s burden is lessened here, in light of Respondent’s pseudonymous registration (which is relevant but not sufficient for an inference of bad faith, see, e.g., Lockheed Martin Corp. v. Mr Healrd Diviolrg, FA 1562892 (Nat. Arb. Forum July 1, 2014)) and its failure to respond to the Complaint in this proceeding—but Complainant still bears the burden of proof on these issues.
Under the circumstances of this case, the Panel finds no basis for inferring that Respondent was aware of Complainant or its mark, let alone that the registration was targeted at Complainant or the mark. Complainant has failed to prove registration and use in bad faith, as required by paragraph 4(a)(iii) of the Policy.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <ppr.中文网> domain name REMAIN WITH Respondent.
David E. Sorkin, Panelist
Dated: August 22, 2014
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