WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Camper, S.L. v. zhengmiansen, jolin kelly, zy
Case No. D2011-1750
1. The Parties
The Complainant is Camper, S.L. of Baleares, Spain, represented by Abril Abogados, Spain.
The Respondents are zhengmiansen and zy both of Putian, Fujian, China and jolin kelly of Jiangsu, China.
2. The Domain Names and Registrars
The disputed domain names <camperaustraliashoes.com> and <camperbootsaustralia.com> are registered with UK2 Group Ltd.
The disputed domain names <campershoessaler.com>, <campershoesstock.com>, and <campershoes2010.com> ( together the “Domain Names”) are registered with Jiangsu Bangning Science & technology Co. Ltd. (together the “Registrars”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 14, 2011. On October 14, 2011, the Center transmitted by email to the Registrars a request for registrar verification in connection with the Domain Names. On October 14, 2011, UK2 Group Ltd. transmitted by email to the Center its verification response confirming that the Respondent jolin kelly is listed as the registrant for the Domain Names <camperaustraliashoes.com> and <camperbootsaustralia.com> and providing the contact details. On October 14, 2011, Jiangsu Bangning Science & technology Co. Ltd. transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names <campershoessaler.com>, <campershoesstock.com>, and <campershoes2010.com> some of which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 19, 2011 providing the registrant and contact information disclosed by the Registrars, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed a first amended Complaint on October 20, 2011. In response to a request by the Center for further amendment to the Complaint, the Complainant filed a second amended Complaint on October 24, 2011. On October 19, 2011, the Center transmitted by email to the parties in both Chinese and English regarding the language of proceedings. On October 19, 2011, the Complainant requested that English be the language of proceedings. The Respondent did not comment on the language of proceedings by the specified due date.
The Center verified that the Complaint together with the amended 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, and the proceedings commenced on October 26, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 15, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 16, 2011.
The Center appointed Karen Fong as the sole panelist in this matter on December 6, 2011. 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 well known international footwear company with its headquarters in Spain. The company was founded in 1975. The Complainant’s products are sold under the trade mark CAMPER. The products are distributed in more than 3,500 establishments and 200 stand alone stores all over the world including Milan, London, Tokyo, New York, Berlin, Rome and Sydney. The CAMPER trade mark is protected by trade mark registrations around the world including the European Union under Community Trade Mark registration number 526095 filed on April 28, 1997 and China under Chinese trade mark registration number 688876 valid from May 7, 1994.
The Domain Names <camperaustraliashoes.com> and <camperbootsaustralia.com> are both registered in the name of jolin kelly on June 19, 2011. The Domain Names were originally registered in the name of PrivacyProtect.org. The Domain Names <campershoes2010.com> and <campershoesstock.com> are both registered in the name of zhengmiansen on August 23, 2011 and the Domain Name <campershoessaler.com> is registered in the name of zy on June 2, 2011. The Domain Names were all connected to active websites (the “Websites”) offering for sale Camper shoes and bearing the CAMPER trade mark. All the Websites except that connected to <camperaustraliashoes.com> were active at the time of the filing of the Complaint. The Domain Names have all since been deactivated.
5. Parties’ Contentions
The Complainant contends that the Domain Names are identical or confusingly similar to the CAMPER trade mark, the Respondent has no rights or legitimate interests with respect to the Domain Names, and that the Domain Names were registered and are being used in bad faith. The Complainant requests transfer of the Domain Names which belong to the three registrants, all of which it believes are connected to each other and are owned and controlled by the same person/organization.
The basis of its belief that there is a common link between the registrants and that all the Domain Names have been registered by the same entity/registrant are as follows:
1. The content of the Websites are identical or similar.
2. The contact email addresses of the registrants of <campershoesstock.com>, <campershoes2010.com> and <campershoessaler.com> all have the domain name <qq.com>. Further the postal addresses of all three registrants of the Domain Names are in Putian, Fujian 350003 China.
3. Two of the Domain Names <camperaustraliashoes.com> and <camperbootsaustralia.com> were registered in the name of a privacy protection service and such services are often used by cyber squatters.
4. Two of the Domain Names <campershoes2010.com> and <campershoesstock.com> are both registered in the name of zhengmiansen with the same address and through the same registrar.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Preliminary Issues
(i) Consolidation of Proceedings
Paragraph 5(f) of the Policy allows a panel to consolidate multiple disputes between parties at its sole discretion and paragraph 10(e) of the Rules empowers a panel to consolidate multiple domain name disputes in accordance with the Policy and Rules. Neither the Policy nor the Rules expressly provide for the consolidation of multiple respondents in a single administrative proceeding. In fact, paragraph 3(c) of the Rules provides that a complaint may relate to more than one domain name provided that the domain names are registered by the same domain name holder. The panel in Speedo Holdings BV v Programmer, Miss Kathy Beckerson, John Smitt, Matthew Simmons, WIPO Case No. D2010-0281 reviewed the relevant UDRP decisions in relation to consolidation in multiple respondents’ cases and extracted the following general principles:
1. Consolidation of multiples registrants as respondents in a single administrative proceeding may in certain circumstances be appropriate under paragraphs 3(c) or 10(e) of the Rules provided the complainant can demonstrate that the disputed domain names or the websites to which they resolve are subject to common control, and the panel having regard to all of the relevant circumstances, determines that consolidation would be procedurally efficient and fair and equitable to all parties.
2. The administrative provider should act as a preliminary gatekeeper in such cases by determining whether or not such complaints fulfill the requisite criteria. Once a case is admitted on a prima facie basis, the respondent has the opportunity to make its submissions on the validity of the consolidation together with its substantive arguments. In the event that the panel makes a finding that the complaint has not satisfied the requisite criteria, the complainant is not precluded from filing the complaint against the individual named respondents.
In the present case, each of the Domain Names incorporates the Complainant’s trade mark CAMPER in its entirety together with different combinations of descriptive and geographical terms, “Australia”, “shoes”, “boots”, “2010”, “shoes stock” and “shoes saler”. The Panel notes that all the Websites when they were active all offered for sale and/or sold Camper shoes and displayed the CAMPER trade marks. The Website connected to <camperaustraliashoes.com> in the name of jolin kelly is almost identical to the Website connected to <campershoes2010.com> in the name of zhengmiansen. The fact that these two registrants each also own <camperbootsaustralia.com> and <campershoesstock.com> respectively connect all four Domain Names to each other. With respect to the Domain Name <campershoessaler.com> in the name of zy, it has the email address with the same domain name <qq.com> as the registrant’s email address of the Domain Name <campershoesstock.com>, <campershoes2010.com>, both of which are registered in the name of zhengmiansen. Further the postal addresses of all three Domain Names are in Putian, Fujian 350003 China. The Panel therefore accepts the Complainant’s reasons set out in Paragraph 5 A above as being indicative that the Domain Names are subject to common control by the same person or company.
The Respondent had the opportunity but did not respond substantively to the Complaint.
Accordingly, applying the principles to the facts in this case, the Panel finds that the Complainant has established more likely than not that the Domain Names are subject to the common ownership or control of the same person or company. The Panel finds such common control to justify consolidation of the Complainant’s claims against the registrants of the Domain Names in this proceeding. The Panel further concludes in the circumstances of this case that consolidation would be fair and equitable to all parties and procedurally efficient, and therefore will allow the consolidation as requested by the Complainant pursuant to paragraph 10(e) of the Rules.
(ii) Language of the Proceeding
The Rules, paragraph 11, provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the proceedings 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 proceedings. According to the information received from the Registrars, the languages of the registration agreement in relation to the Domain Names are as follows:
- <camperaustraliashoes.com> - English
- <camperbootsaustralia.com> - English
- <campershoes2010.com> - Chinese
- <campershoesstock.com> - Chinese
- <campershoessaler.com> - Chinese
The Complainant submits in Section IV of the Complaint and that irrespective of the language of the registration agreements, the language of the proceeding should be English. The Domain Names and the content of the Websites are all in English. This indicates that the Respondent who is in control of the Domain Names is able to communicate in English.
In response to the Center’s email, regarding the language of the proceeding of the Domain Names, the Complainant submitted a request that English be the language of the proceeding on October 19, 2011. The Respondent did not comment on the language of the proceeding by the specified due date.
The Panel accepts the Complainant’s submissions in the Complaint regarding the language of the proceeding and is satisfied that the Respondent appears to be familiar with the English language. The Complainant may be unduly disadvantaged by having to conduct the proceedings in Chinese. Furthermore, the Panel notes that all of the communications from the Center to the parties were transmitted in both Chinese and English. Having considered all the circumstances of this case, the Panel determines that English is the language of the proceeding.
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names, the Complainant must prove each of the following, namely that:
(i) The Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) The Domain Names were registered and are being used in bad faith.
C. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has established that it has rights to the trade mark CAMPER.
The threshold test for confusingly similarity involves the comparison between the trade mark and the domain name itself to determine likelihood of Internet user confusion. The trade mark would generally be recognizable within the domain name. In this case the Complainant’s registered trade mark CAMPER is the dominant portion of the Domain Names. The addition of the descriptive and geographical terms, “Australia”, “shoes”, “boots”, “2010”, “shoes stock” and “shoes saler” does nothing to minimise the risk of confusion. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy it is permissible for the Panel to ignore the generic domain suffix “.com”. The Panel finds that the Domain Names are identical or confusingly similar to a trade mark in which the Complainant has rights.
D. Rights or Legitimate Interests
The Complainant alleges that none of the registrants are commonly known as “Camper” and there is no known connection between the registrants and the CAMPER trade mark. The Respondent is not a distributor, reseller or client of the Complainant or has any other commercial relationship with the Complainant. The Websites are intended to mislead consumers into believing that each one is endorsed or licensed by the Complainant and there are references to show an association with the Complainant which are false. This is also evidenced by the fact that the CAMPER trade mark is displayed on the Websites including a photograph of the Complainant’s store in San Sebastian on one of them.
The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Names.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Names.
E. Registered and Used in Bad Faith
The Panel is satisfied that the Respondent must have been aware of the Complainant’s CAMPER mark when it registered the Domain Names. The fact that the Domain Names incorporate the Complainant’s well-known trade mark in its entirety is in the Panel’s view evidence that the registration of the Domain Names was in bad faith.
With respect to the use of the Domain Names, the Panel observes the following:
(i) Two of the Domain Names include the geographical indicator “Australia” which suggests a connection with the country when this is not the case;
(2) The Domain Name <campershoesstock.com> uses the Robot.txt file in order to block any historic archive of the website connected to the Domain Name;
(3) The Websites do not clearly display who is in charge of the business;
(4) Some shoe model numbers on the Websites connected to <camperaustraliashoes.com> and <camperbootsaustralia.com> are fictitious and do not match any real Camper model;
(5) The Websites bear some of the original images belonging to the Complainant without any license or authorization;
(6) The Website connected to <campershoesaler.com> displays text which refers to Nike products.
These are just a few of the examples which evidence suspicious behavior. There is a clear intention to attract for commercial gain by confusing and misleading Internet users into believing that the Respondent’s Websites are and the products sold on them are authorised or endorsed by the Complainant. The above is clearly bad faith under paragraph 4(b)(iv) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Names, <camperaustraliashoes.com>, <camperbootsaustralia.com>, <campershoes2010.com>, <campershoesstock.com>, and <campershoessaler.com> be transferred to the Complainant.
Dated: December 24, 2011