The Complainant is The Net-A-Porter Group Limited of London, United Kingdom of Great Britain and Northern Ireland (“UK”) represented by Winston & Strawn LLP, United States of America (“USA”).
The Respondent is Online Management LTD. of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland.
The disputed domain name <netarporter.com> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 7, 2013, naming the respondent as “Domains By Proxy, LLC / Private Registrant”.
The Center transmitted its request for registrar verification to the Registrar on August 8, 2013. The Registrar responded on August 9, 2013, stating that it had received a copy of the Complaint, that the Domain Name was registered with it, that the registrant was Online Resource Management Ltd, not Domains By Proxy, LLC, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied, that the Domain Name would expire on March 21, 2014, that it would remain locked during this proceeding subject to expiry, that the language of the registration agreement was English and (in answer to the question when the Domain Name was registered) that it was registered through a privacy service. The Registrar also provided the full contact details held on its database in respect of the Domain Name, which gave the registrant’s name as Online Management LTD. and its organization as Online Resource Management Ltd.
The Center informed the Complainant on August 9, 2013 that the Registrar had identified the registrant and provided its contact details, and invited the Complainant to submit an amendment to the Complaint or an amended Complaint. The Complainant submitted an amended Complaint the same day, naming the respondent as “Online Management Ltd. a/k/a Online Resource Management Ltd.”
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 13, 2013. In accordance with paragraph 5(a) of the Rules, the due date for Response was September 2, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 3, 2013.
The Center appointed Jonathan Turner as the sole panelist in this matter on September 18, 2013. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the amended Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.
The Complainant operates a leading website retailing luxury fashionwear at “www.net-a-porter.com” under the name and mark NET-A-PORTER since June 2000. The Complainant has registered NET-A-PORTER as a trademark for various goods and services in the USA and the UK.
The Domain Name resolves to a web page which contains links to various websites and pages promoting fashionwear. The web page also carries the statement “the domain netarporter.com is for sale! To purchase, call +1 339-222-5147 NOW!”.
The Complainant contends that the Domain Name is confusingly similar to its trademark NET-A-PORTER in which it has registered and unregistered rights.
The Complainant maintains that the Respondent, Online Management Ltd., does not have any rights or legitimate interests in respect of the Domain Name, observing that the Respondent is not commonly known by the Domain Name, that it has not carried on any bona fide business under the Domain Name, and that it is using the Domain Name for pay-per-click links to websites which advertise products competing with those sold by the Complainant. The Complainant adds that it has not licensed the Respondent to use the Domain Name.
The Complainant alleges that the Domain Name was registered and is being used in bad faith, referring to paragraphs 4(b)(iii) and (iv) of the UDRP.
The Complainant requests that the Domain Name be transferred to it.
As stated above, the Respondent did not reply to the Complainant’s contentions.
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. It is appropriate to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent’s default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
The Panel finds that the Complainant has registered and unregistered rights in the mark NET-A-PORTER.
The Panel further holds that the Domain Name is confusingly similar to this mark, from which it differs only in the omission of hyphens and the addition of a single letter “r” and the generic top level domain suffix. The Panel considers that persons interested in accessing the Complainant’s website might well misspell or mistype its domain name and thereby arrive at the Respondent’s website when seeking information about the Complainant. It has long been recognized that a domain name is to be regarded as confusingly similar to an established mark where this is liable to happen: see paragraph 1.10 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
The first requirement of the UDRP is therefore satisfied.
The Complainant states, and the Panel accepts, that the Respondent’s only use of the Domain Name has been for a web page containing sponsored links to websites of third parties, including third parties trading in the same area of goods and services as the Complainant. The Panel does not regard this as a bona fide offering of goods or services.
In the absence of any evidence to the contrary, the Panel also accepts the Complainant’s statements that the Respondent is not commonly known by the Domain Name, has not made any legitimate noncommercial or fair use of it, and has not been granted permission by the Complainant to use it.
On the basis of the evidence filed, there does not appear to be any other basis on which the Respondent could claim any rights or legitimate interests in respect of the Domain Name.
The Panel accordingly finds that the Respondent has no rights or legitimate interests in the Domain Name and that the second requirement of the UDRP is satisfied.
The Panel finds on the undisputed evidence that the Respondent has used the Domain Name intentionally to attract Internet users to a web page containing sponsored links to competing third party websites for commercial gain by creating a likelihood of confusion with the Complainant’s trademark as to its source, sponsorship, affiliation or endorsement.
In accordance with paragraph 4(b)(iv) of the UDRP, this constitutes evidence of registration and use of the Domain Name in bad faith. There is no material in the file which displaces this presumption. Accordingly the Panel finds that the Domain Name has been registered and is being used in bad faith. The third requirement of the UDRP is satisfied.
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 <netarporter.com> be transferred to the Complainant.
Jonathan Turner
Sole Panelist
Date: October 2, 2013