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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

P.R.I.A.M.O. srl v. ShangHai GIORGIO ADMA Advanced ready-made clothes productiong co., ltd.

Case No. D2006-1500

 

1. The Parties

The Complainant in this administrative proceeding is P.R.I.A.M.O. srl, Bitonto, Italy, represented by Avv. Michele Elio De Tullio.

The Respondent is ShangHai GIORGIO ADMA Advanced ready-made clothes productiong co., ltd., Shanghai, China.

 

2. The Domain Name and Registrar

The disputed domain name <parkhouse-london.com> is registered with Beijing innovative linkage technology ltd.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 22, 2006. On November 27, 2006, the Center transmitted by email to Beijing innovative linkage technology ltd. a request for registrar verification in connection with the domain name at issue. On December 20, 2006, Beijing innovative linkage technology ltd. transmitted by email to the Center its verification response. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant requested for an 30 day extension due to the approaching Christmas season and at the same time requested that the language of proceeding should be English rather than Chinese. On January 25, 2007, the Complainant filed an amendment to the Complaint. 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”), 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 January 26, 2007. In accordance with the Rules, paragraph 5(a), the due date for the Response was February 15, 2007. Accordingly, the Center notified the Respondent’s default on February 16, 2007.

The Center appointed Linda Chang as the sole panelist in this matter on February 27, 2007. 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.

Language of Proceeding

According to paragraph 11 of the Rules, the language of the administrative proceeding shall be the language of the registration agreement unless the Panel decides otherwise, with regard to the circumstances of the case.

In the present case, the registration agreement for the disputed domain name was made in the Chinese language. The print-outs of the web pages of the domain name at issue provided by the Complainant indicate that the website was hosted in both English and Chinese. From the record it would appear that the Respondent has sufficient ability communicating in the English language. On the other hand, the Complainant is not able to communicate in Chinese and therefore, if the Complainant were required to submit all documents in Chinese, the administrative proceeding would be unduly delayed and the Complainant would have to incur substantial expenses for translation. Therefore, the Panel decides that English shall be the language of the administrative proceeding.

 

4. Factual Background

The Complainant is an Italian company involved in designing, producing, advertising and commercializing a full series of fashion products under the trade mark PARK HOUSE all over the world. It is also the owner of trade mark registrations of PARK HOUSE in such jurisdictions as Italy, European Community Trademark, International Registration designated in China, Russian Federation, Albania and Singapore. The Complainant holds the registration of the domain name <parkhouse.it> and maintains a website under this domain name.

The Respondent is a Chinese company resided in Shanghai, according to the Whois information provided by the domain name Registrar. It registered the domain name at issue in May 2005, and had been maintaining a website at “www.parkhouse-london.com” displaying men’s wear on its web page featured as ‘PARKHOUSE Made in England’.

 

5. Parties’ Contentions

A. Complainant

Identical or confusingly similar

The Complainant contends the following:

- It owns trade mark registrations of and applications for PARK HOUSE in various jurisdictions, details of which are listed as follows:

- PARK HOUSE, Community Trade Mark registration n. 4259693, filed on January 27, 2005, and registered on March 24, 2006, for products and services in classes 15, 25, 35, 38 and 42 (Annex 2 to the Complaint);

- PARK HOUSE, Italian Registration n. 956370, filed on October 13, 2004, and registered on February 18, 2005, for products and services in classes 15, 25, 35, 38 and 42 (Annex 3 to the Complaint);

- PARK HOUSE, Italian Registration n. 802511, filed on July 22, 1997, and registered on February 25, 2000, for products in class 25 (Annex 4 to the Complaint);

- PARK HOUSE, International Registration n. 857623, filed on January 31, 2005 and registered on February 18, 2005, for products and services in classes 15, 25, 35, 38 and 42 claimed in Albania, China, Russian Federation and Singapore (Annex 5 to the Complaint);

- PARK HOUSE BY MICHELE ACHILLE, Italian Application n. RM2006C003858, filed on June 27, 2006, for products and services in classes 9, 16, 25, 35, 38 and 42 (Annex 6 to the Complaint);

- PARK HOUSE in Chinese characters, Chinese Application filed on June 17, 2006, for products in class 25 (Annex 7 to the Complaint);

- PARK HOUSE, Hong Kong Application n. 300652518, filed on June 5, 2006, for products in class 25 (Annex 8 to the Complaint).

Moreover the Complainant holds a registration for the domain name:

<parkhouse.it>.

- The Complainant’s trade mark PARH HOUSE is used in relation to a range of products and services connected with the fashion sector. The Complainant designs, produces, advertises, and commercializes a full series of fashion products with the trade mark PARK HOUSE all over the world.

- It is self evident that the domain name at issue is identical with or confusingly similar to the trade mark in which the Complainant has rights. The domain <parkhouse-london.com> fully incorporates the trade mark PARK HOUSE, while the word “London” has a mere descriptive role and therefore is not apt to make the domain name substantively different from the Complainant’s registrations. The addition of the generic top-level domain name “.com” is irrelevant when determining whether a disputed domain name is confusingly similar to a protected mark.

- Moreover, it is well established that when a domain name incorporates a Complainant’s registered mark, this is sufficient to establish that the domain name is identical or confusingly similar for the purposes of the Policy (Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525, Annex 9 to the Complaint).

- It follows that the identity or similarity between the trade mark PARK HOUSE and the domain <parkhouse-london.com> might very likely mislead the consumer who would easily associate the domain name to the trade mark of the Complainant.

Rights or legitimate interests

In terms of whether the Respondent has rights or legitimate interests in the domain name, the Complainant asserts the following:

The Respondent has no rights or legitimate interests in the domain name, because :

- First, the Respondent has used the domain name with the intent to misleadingly divert the public looking for the Complainants’ website. The text in the web site of the Respondent makes explicit reference to the Complainant with the intention of making the public believe that there exists a connection between the Respondent and the Complainant although no such kind of relationship exists. It is evident that this is not a legitimate use of the domain name at issue.

- Secondly, the Respondent has no rights or legitimate interests in the domain name, because there is no evidence that the Respondent has been or is commonly known by the domain name, or that the Respondent has acquired any trademark rights in the domain name, nor has the Complainant authorized or permitted the Respondent to use the trade mark “PARK HOUSE” as its domain name.

- Further more, on July 21, 2006, the Complainant sent a cease and desist letter (Annex 10 to the Complaint) (which was received by courier on July 24, 2006, and by fax on July 27, 2006 - confirmations of transmission are attached as Annexes 11 and 12 to the Complaint) to the Respondent, requiring it to cease any misuse of the name “PARK HOUSE”. The Respondent did not reply to such letter and this can be seen as an absolute lack of legitimate interest in the domain name.

Bad faith registration and use

In respect of the Respondent’s bad faith in registration and use of the domain name, the Complainant claims the following:

- The Respondent undertook the registration of the domain name at issue and used it to intentionally attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant's mark and domain name as to the source, sponsorship, or affiliation of Respondent’s products and services, which are identical to those commercialized by the Complainant under the trade mark PARK HOUSE.

- In fact, on the web pages related to the domain name at issue (Annex 13 to the Complaint), the text under the heading “company” reads: “The PARK HOUSE brand was launched by P.R.I.A.M.O. s.r.l. a manufacturing company, based in England. […] The company’s fashion collections are based on the ideas and enthusiasm of a winning family partnership, Michele Achille and Rosa Achille […]”. Using such references, the Respondent intends to mislead the consumer as to the source of the products it intends to promote and commercialize. Indeed the Respondent has no right to use the brand and the names PARK HOUSE and P.R.I.A.M.O. which is not, as the Responded stated, an English company, but an Italian company.

- As other evidence of the bad faith of the Respondent, the Complainant notes that the photos shown under “contact” of the Respondent’s web page are those of the Italian show room of the Complainant in Bitonto (Bari), Italy which appeared in the Complainant’s previous web site (Annex 14 to the Complaint). Moreover the style of the Respondent’s web site is reproduced very closely to that of the Complainant’s previous web site.

- The circumstances above mentioned are clear proof of the fact that, at the time of the registration of the domain name at issue, the Respondent was aware that the Complainant is the holder of the trade mark PARK HOUSE in the fashion sector which also maintains a web site under the same name.

- This fraudulent conduct shows the Respondent’s bad faith and its intention to attract Internet users/potential consumers by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website. The consumer, surfing on the web, is likely to be confused by the Respondent’s use of the Internet website “www.parkhouse-london.com” and by the references included in that website, and may reasonably believe that the Complainant is endorsing the Respondent’s website, and that the Respondent is authorized to distribute Complainant’s products, which is not the case.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

The Complainant must satisfy each of the following three requirements as provided under paragraph 4(a) of the Policy in order for the remedy sought by the Complainant to be granted by the Panel in this administrative proceeding:

(i) the disputed domain name is identical or confusingly similar to the trademark 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

It is obvious the domain name at issue <parkhouse-london.com> is identical with or confusingly similar to the Complainant’s registered trade mark PARK HOUSE. This Panel supports the view that the word ‘London’ in the domain name is just a geographical name while “.com” is merely a generic indicator of a gTLD, neither of which has substantively changed the distinctive character of the essential part of the domain name <parkhouse-london.com>. In fact, the addition of the word ‘London’, rather than distinguishing the domain name from the trade mark, increases the likelihood of confusion amongst consumers by creating a false inference that the items displayed on the Respondent’s website are of the Complainant’s products made in London.

The Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. It is the consensus view of WIPO Panelists that once the Complainant has established a prima facie case, it is the Respondent’s responsibility to prove otherwise.

The Respondent has not been able to prove any of the circumstances provided in paragraph 4(c) of the Policy, and the record does not contain any other plausible indication that the Respondent has rights or legitimate interests in the disputed domain name. In particular, the Respondent has not been able to prove (i) before notice of the dispute, that it has used or has prepared to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services, nor (ii) that it has been commonly known by the domain name, nor (iii) that it 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.

In the circumstances, the Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b)(iv) provides the following situation, amongst others, as evidence of the Respondent’s registration and use of the domain name in bad faith:

By using the domain name, you (the domain holder) 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.

From the information on record, the Panel noted the Respondent had the following contents on its web site:

- Under the heading of ‘company’, it reads “The PARK HOUSE brand was launched by P.R.I.A.M.O. s.r.l. a manufacturing company, based in England. … The company’s fashion collections are based on the ideas and enthusiasm of a winning family partnership, Michele Achille and Rosa Achille…”. The photos shown under “contact” of the Respondent’s web page are actually those of the Complainant’s show room in Bitonto (Bari), Italy which appeared in the Complainant’s previous web site.

Considering the fact that the Respondent does not have any rights or legitimate interests in the name “park house”, the manner it was using the Complainant related information on its web site leads the Panel to the inference that it had known about the Complainant and its trade mark PARK HOUSE when it came to register the domain name at issue and that its use of the domain name was deliberately to attract, for commercial gain, Internet users to its own web site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its own web site. This situation falls within paragraph 4(b)(iv) of Policy.

The Panel is satisfied that the Complainant has met the requirements of paragraph 4(a)(iii) of the Policy.

 

7. Decision

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 <parkhouse-london.com> be transferred to the Complainant.


Linda Chang
Sole Panelist

Dated: March 13, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-1500.html

 

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