WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ann Summers Limited v. Domains By Proxy, LLC / Mingchun Chen
Case No. D2018-0625
1. The Parties
The Complainant is Ann Summers Limited of Whyteleafe, United Kingdom of Great Britain and Northern Ireland, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
The Respondent is Domains By Proxy, LLC of Scottsdale, Arizona, United States of America / Mingchun Chen of Fuzhou, Fujian, China.
2. The Domain Name and Registrar
The disputed domain name <annsummerss.info> is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 21, 2018. On March 21, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 22, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 22, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on March 22, 2018.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on March 26, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 15, 2018. The Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 16, 2018.
The Center appointed Martin Schwimmer as the sole panelist in this matter on April 23, 2018. 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
Complainant, Ann Summers Limited, a retailer, has used the ANN SUMMERS trademark (the "Mark") for goods and services since the 1970's. Complainant owns various trademark registrations, including European Union Trademark registration no. 48421 ANN SUMMERS registered on October 5, 1998. Respondent registered the disputed domain name <annsummerss.info> on February 6, 2018. The disputed domain name has redirected to Complainant's official website at "www.annsummers.com".
5. Parties' Contentions
Complainant, Ann Summers Limited, is a British retailer. It has used the Mark since the 1970's in connection with online and brick-and-mortar retail store services, distribution services, as well as with apparel and sex toys (see "www.annsummers.com"). Complainant owns registrations for the ANN SUMMERS word mark in various jurisdictions, including the European Union and in the United States of America.
The disputed domain name <annsummerss.info> is confusingly similar to the Mark, as it incorporates the Mark in its entirety with only the addition of the letter "s." Such an addition does not alter the overall impression of the disputed domain name.
Respondent registered the disputed domain name <annsummerss.info> in February 2018.
Respondent utilizes the disputed domain name to re-direct to Complainant's website at "www.annsummers.com". Such re-direction is not bona fide use. Respondent is not authorized or associated with Complainant in any manner. Respondent is not known by the disputed domain name, nor owns any trademark reflecting the Mark.
Complainant has been using the ANN SUMMERS trademark for 45 years. Respondent redirects the disputed domain name to Complainant's website, and thus is indisputably aware of Complainant.
Re-direction has been held to be bad faith use as it reinforces confusion among Internet users.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Complainant has established ownership of the trademark ANN SUMMERS. The disputed domain name is confusingly similar to the Mark because it fully incorporates and is identical to the Mark but for the addition of the letter "s." This additional letter does not change the appearance, pronunciation, nor connotation of the Mark. The Panel takes notice of the fact that when one enters "annsummerss" as a search term in the Google search engine, it treats that term as the equivalent of the term "ann summers."
Therefore, the Panel finds that the disputed domain name is identical or confusingly similar to the Mark, as outlined in paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The second ground to be demonstrated by Complainant, according to the provisions of the Policy, is Respondent's absence of any rights or legitimate interests in the disputed domain name, per paragraph 4(c) of the Policy.
Previous UDRP panels have consistently held that it is sufficient for a complainant to prove a prima facie case that the respondent does not hold rights or legitimate interests in the domain name (see Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455 and Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110). Once a prima facie case is shown, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating its rights or legitimate interests in the disputed domain name.
The Panel is satisfied that Respondent has no connection or affiliation with Complainant and has not received any license or consent to use the Mark in a domain name or in any other manner. Complainant alleges that there is no such connection here.
Furthermore, panels have found that unauthorized redirection to Complainant's website does not serve as evidence of rights or legitimate interests. Carrefour v. WhoisGuard, Inc., WhoisGuard Protected / Robert Jurek, Katrin Kafut, Purchasing clerk, Starship Tapes & Records, WIPO Case No. D2017-2533.
In addition, Respondent has not submitted any reply to Complainant's contentions.
Therefore, in light of Complainant's prima facie case, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Complainant has put forth extensive evidence of decades of use of the Mark, as well as evidence of a wide-ranging online presence. Considering the reputation of the Mark, and considering that Respondent's disputed domain name is a near-equivalent of Complainant's Mark, and also considering that Respondent's website redirects to Complainant's website, it is beyond speculation that Respondent was aware of Complainant's Mark and its reputation, when it registered the disputed domain name.
The Panel finds that the redirection from the disputed domain name to Complainant's official website reinforces the likelihood of confusion. Internet users are likely to consider the disputed domain name as in some way endorsed by or connected with Complainant, particularly taking into consideration the reputation of the Mark. See Marie Claire Album v. Whoisguard Protected, Whoisguard, Inc. / Dexter Ouwehand, DO, WIPO Case No. D2017-1367. UDRP panels have pointed out in previous redirection UDRP cases, that as long as the complainant does not itself control the disputed domain name, it could be redirected to an unauthorized site at any time. Myspace, Inc. v. Mari Gomez, WIPO Case No. D2007-1231.
Furthermore, the Panel may make negative inferences arising from Respondent's failure to respond. See, e.g., Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil, WIPO Case No. D2000-1409.
The Panel finds that in light of all the circumstances of this case Complainant has established that the disputed domain name was registered and is being used in bad faith, as outlined in paragraph 4(a)(iii) 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 disputed domain name <annsummerss.info> be transferred to Complainant.
Date: June 8, 2018