WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Giorgio Armani S.p.A. Milan Swiss Branch Mendrisio v. Zhao Yun, DomainStore Inc
Case No. D2013-0299
1. The Parties
The Complainant is Giorgio Armani S.p.A. Milan Swiss Branch Mendrisio of Mendrisio, Switzerland, represented by Studio Rapisardi S.A., Switzerland.
The Respondent is Zhao Yun, DomainStore Inc of Beijing, China.
2. The Domain Name and Registrar
The disputed domain name <armaniexchange.mobi> (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 13, 2013. On February 13, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 14, 2013, 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. In response to a notification by the Center regarding the Registrar information, the Complainant filed an amendment to the Complaint on February 18, 2013.
The Center verified that the Complaint together with the amendment to 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, and the proceedings commenced on February 19, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 11, 2013. On February 18, 2013, the Respondent sent an email communication indicating “my price 3600 EURO”. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on March 12, 2013.
The Center appointed Michelle Brownlee as the sole panelist in this matter on March 20, 2013. 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 owns several registrations in various jurisdictions throughout the world for the marks ARMANI, GIORGIO ARMANI, ARMANI EXCHANGE and A|X ARMANI EXCHANGE and design for a wide variety of goods and services, including, but not limited to, clothing, perfumes and cosmetics, jewelry, luggage, retail services, and hotel and restaurant services. These include Switzerland Registration No. P-438921, filed on November 15, 1996, United States Registration No. 2236428, registered on April 6, 1999, with a priority date of November 15, 1996, Canada Registration No. TMA 788,149, registered on January 20, 2011, all for the mark ARMANI EXCHANGE.
The Domain Name was registered on May 24, 2012.
5. Parties’ Contentions
The Complainant owns trademark rights in the marks ARMANI, GIORGIO ARMANI, and ARMANI EXCHANGE which have become very famous throughout the world, as several UDRP panels have found. See, e.g., GA Modefine S.A., Giorgio Armani S.p.A. v. Kim Hongtae, WIPO Case No. D2007-0851; GA MODEFINE SA., Giorgio Armani S.p.A. v. Ahmad Haqqi, WIPO Case No. D2007-0834 and GA Modefine S.A. v. Namezero.Com, WIPO Case No. D2001-0331. The Domain Name is identical to the Complainant’s ARMANI EXCHANGE trademark.
The Respondent has no connection or affiliation with the Complainant and has not received any license or consent from the Complainant to use the Complainant’s marks. The Complainant argues that the Respondent has no rights to or legitimate interests in respect of the Domain Name. The Domain Name resolves to the site ”www.groupon.it’’, which offers products and services at discounted prices. The Complainant argues that the Domain Name was registered and is being used in bad faith, since the ARMANI EXCHANGE mark is famous, and the Respondent is using the mark in the Domain Name to mislead consumers and divert Internet traffic to the ”www.groupon.it’’ web site. As further evidence of the Respondent’s bad faith, the Complainant has presented evidence that the Respondent replied to the Complainant’s demand letter by offering to sell the Domain Name for USD 5,000.
The Respondent did not formally reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(i) the 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 domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has demonstrated that it has rights in the ARMANI EXCHANGE mark. The second level of the Domain Name is identical with the Complainant’s ARMANI EXCHANGE mark. Accordingly, the Panel finds that the Complainant has demonstrated that the Domain Name is identical to a mark in which the Complainant has rights.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate rights to or legitimate interests in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue.
The Respondent has not presented evidence that the Respondent used or made preparations to use the Domain Name in connection with a bona fide offering of goods or services, that the Respondent is commonly known by the Domain Names or that the Respondent is making a noncommercial or fair use of the Domain Names, or in any other way refuted the Complainant’s prima facie case. The Complainant has alleged that the Respondent is using the Domain Name to divert Internet traffic to a web site that is selling discounted products and services that is not affiliated with the Complainant, and the Respondent has not refuted those allegations. In the Panel’s view, this cannot be considered a bona fide offering of goods or services. Accordingly, the Panel finds that the Complainant has established this element of the Policy.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
The Complainant has established bad faith under paragraph 4(b)(iv) of the Policy. The Complainant has alleged that the Domain Name is used in connection with to divert traffic to a web site that falsely suggests an affiliation with the Complainant. The Respondent did not reply to these contentions. The Complainant has also established bad faith under paragraph 4(b)(i) of the Policy. When the Complainant sent a demand letter to the Respondent asking the Respondent to cancel or transfer the Domain Name, the Respondent replied that he would sell the Domain Name for USD 5,000. Under the circumstances, the Panel finds that the Respondent has registered and used the Domain Name in bad faith.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <armaniexchange.mobi> be transferred to the Complainant.
Date: April 2, 2013