BALENCIAGA SA v. ling lin
Claim Number: FA1801001768542
Complainant is BALENCIAGA SA ("Complainant"), represented by Joanna Kalnik of INSIDERS, France. Respondent is ling lin ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <ibalenciaga.com> and <balenciaga‑2018.com>, registered with GoDaddy.com, LLC.
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 Forum electronically on January 24, 2018; the Forum received payment on January 24, 2018.
On January 25, 2018, GoDaddy.com, LLC confirmed by email to the Forum that the <ibalenciaga.com> and <balenciaga-2018.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 January 25, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 14, 2018 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@ibalenciaga.com, postmaster@balenciaga-2018.com. Also on January 25, 2018, 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 Forum transmitted to the parties a Notification of Respondent Default.
On February 15, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 uses the trademark BALENCIAGA in connection with clothing and related products. The products are offered for sale in more than 90 countries, both online and in physical boutiques. Complainant owns longstanding international and Chinese registrations for the BALENCIAGA mark.
Respondent registered the disputed domain names <ibalenciaga.com> and <balenciaga-2018.com> on January 12, 2018. The domain names resolve to websites that display Complainant's BALANCIAGA mark and logo, along with what appear to be images of Complainant's products, offering the products for sale at discounted prices. Complainant states that Respondent is not affiliated with Complainant in any way, as an authorized retailer or otherwise; has not been authorized to use its BALENCIAGA mark; and is not commonly known by the disputed domain names.
Complainant contends on the above grounds that the disputed domain names are confusingly similar to Complainant's mark; that Respondent has no rights or legitimate interests in the disputed domain names, and that the domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are 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(f), 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 (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 <ibalenciaga.com> incorporates Complainant's registered BALENCIAGA mark, prefixing it with a letter "I" and appending the ".com" generic top-level domain. The disputed domain name <balenciaga‑2018.com> also incorporates the mark, adding a hyphen and the year 2018 along with the ".com" top-level domain. None of these additions substantially diminishes the similarity of the domain names to Complainant's mark. See, e.g., Bloomberg L.P. v. Stanford Asset Management c/o Michael Onken, FA 97257 (Forum June 19, 2001) (finding <ibloomberg.com> confusingly similar to BLOOMBERG); PRADA S.A. v. xie xiaomei / zhang yuanyuan / zhou honghai / zhouhonghai / Zhou Hong Hai / Honghai Zhou / deng wen / xie peiyuan / Jianghong Wang / xie caida / liu min / du linmei, D2016-0799 (WIPO June 22, 2016) (finding <prada‑2016.com> confusingly similar to PRADA). Accordingly, the Panel finds the disputed domain names to be confusingly similar to Complainant's mark.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain names incorporate Complainant's registered mark, and are being used for websites that prominently display Complainant's mark and logo, along with apparent images of Complainant's products, offering them for sale at discounted prices. The sites do not disclaim any connection with Complainant, and in fact seem to be designed to create an appearance of such a connection. Such use does not give rise to rights or legitimate interests. See, e.g., Interflora, Inc. v. Kenneth Chow, FA 1764136 (Forum Jan. 22, 2018) (finding lack of rights or legitimate interests where domain name nearly identical to registered mark was used for website that competed directly with mark owner or its licensees); ShopStyle, Inc. v. Tuan Chen, FA 1760231 (Forum Jan. 4, 2018) (finding lack of rights or legitimate interests where domain name nearly identical to registered mark was used for website that mimicked appearance of mark owner's website).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, 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 names.
Finally, Complainant must show that each disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered and is using domain names that incorporate Complainant's trademark for websites that compete directly with Complainant, in a manner calculated to create a false impression that the sites are connected with Complainant. Under the circumstances, the Panel infers that Respondent was aware of Complainant and its mark, and intentionally selected and used domain names incorporating the mark in order to create confusion and disrupt Complainant's business. See, e.g., Interflora, Inc. v. Kenneth Chow, supra (finding bad faith registration and use in similar circumstances). The Panel finds that the disputed domain names were registered and are being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <ibalenciaga.com> and <balenciaga‑2018.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 16, 2018
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