Complainant is Missoni S.p.A. of Sumiragio, Italy, represented by Dr. Modiano & Associati S.p.A., Italy.
Respondent is Liu Zhixian of Putian, the People's Republic of China.
The disputed domain name <missoniclothing.com> is registered with Name.com LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 11, 2010. On March 12, 2010, the Center transmitted by email to Name.com LLC a request for registrar verification in connection with the disputed domain name. On March 16, 2010, Name.com LLC transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
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 Respondent of the Complaint, and the proceedings commenced on March 18, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 7, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 8, 2010.
The Center appointed Richard G. Lyon as the sole panelist in this matter on April 14, 2010. The Panel finds that it was properly constituted. The Panel has submitted his Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainant is a high-fashion provider that has marketed clothes all over the world under the brand Missoni, its company name and also the family name of its designer. Complainant holds trademarks for MISSONI registered with national authorities in scores of countries. Its principal official website is <missoni.com>.
Respondent created the disputed domain name on October 30, 2009. The disputed domain name at one time resolved to a website at which women's clothing was sold under the name Missoni. When the Panel tried to access the disputed domain name, he received a “403 forbidden” message on his computer screen.
Complainant's contentions, to the extent pertinent to the Panel's discussion and findings, are set forth in section 6 below. No Response has been filed with the Center.
In any default case the Panel must first evaluate its own jurisdiction. This analysis begins with paragraph 2(a) of the Rules, which provides:
(a) When forwarding a complaint, including any annexes, electronically to the Respondent, it shall be the Provider's responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility:
(i) sending Written Notice of the complaint to all postal-mail and facsimile addresses (A) shown in the domain name's registration data in Registrar's Whois database for the registered domain-name holder, the technical contact, and the administrative contact and (B) supplied by Registrar to the Provider for the registration's billing contact; and
(ii) sending the complaint, including any annexes, in electronic form by e-mail to:
(A) the e-mail addresses for those technical, administrative, and billing contacts;
(B) postmaster@<the contested domain name>; and
(C) if the domain name (or “www.” followed by the domain name) resolves to an active web page (other than a generic page the Provider concludes is maintained by a registrar or ISP for parking domain-names registered by multiple domain-name holders), any e- mail address shown or e-mail links on that web page; and
(iii) sending the complaint, including any annexes, to any e-mail address the Respondent has notified the Provider it prefers and, to the extent practicable, to all other e-mail addresses provided to the Provider by Complainant under Paragraph 3(b)(v).
Following its customary practice, the Center in this case sent a copy of the Complaint and annexes by electronic mail to Respondent at “email@example.com” and at the email address set out in the contact details provided by the Registrar. The Center simultaneously dispatched by recognized courier service a hard copy of the Written Notice to Respondent, again at the address shown in the Registrar's contact details. While the email transmission to “firstname.lastname@example.org” was returned as undeliverable, the other email transmission appears to have been delivered and the courier service confirmed delivery of the Written Notice. Accordingly, “actual notice” has occurred and by the express terms of the second sentence of paragraph 2(a) the Center has discharged its duty, Respondent has received due notice of this proceeding, and the Panel has jurisdiction to decide this administrative proceeding.
Before turning to the three requirements of paragraph 4(a) of the Policy, as a procedural matter the Panel notes that Respondent's default does not constitute an admission of any pleaded matter or result in the Policy equivalent of a default judgment. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 4.6; Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228; Western Research 3000, Inc. v. NEP Products, Inc., WIPO Case No. D2004-0755 (“The Policy requires the Complainant to prove each of the three [Policy] elements” (emphasis in original)).
Complainant has met its burden of proof on each Policy element. The disputed domain name has as its dominant feature Complainant's registered mark1, Complainant has demonstrated and the record reveals that Respondent does not have any rights or legitimate interests in the disputed domain name, and the evidence furnished by Complainant demonstrates that Respondent falls clearly within the example of bad faith set out in 4(b)(iv) of the Policy: “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location.” As in many Policy proceedings, Respondent's selection of the disputed domain name itself provides convincing evidence of registration and the use of the disputed domain name in bad faith. Complainant's mark is distinctive and well known around the world. Without some colorable right to use that mark there are few if any plausible explanations for incorporating it into a disputed domain name other than the free ride identified in paragraph 4(b)(iv). The earlier content at the page to which the disputed domain name resolved demonstrates Respondent's actual knowledge of Complainant and its marks2, so there is no question in this Panel's view that Respondent both registered and used the disputed domain name in bad faith. This is a textbook example of cybersquatting, exactly the sort of conduct the Policy was enacted to address.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <missoniclothing.com> be transferred to Complainant.
Richard G. Lyon
Dated: April 19, 2010
1 The addition to the trademark of Complainant's principal product – clothing – only makes confusion more likely.
2 Even if Respondent lacked actual knowledge of Complainant and its marks, knowledge could be imputed because of its willful blindness to them. See Mobile Communication Service Inc. v. WebReg, RN, WIPO Case D2005-1304.