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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Peek & Cloppenburg KG v. Whois Privacy Protection Service, Inc./Demand Domains

Case No. D2007-0019

 

1. The Parties

The Complainant is Peek & Cloppenburg KG, Dьsseldorf, Germany, represented by Siebeke Lange Wilbert, Germany.

The Respondent is Demand Domains, Washington, United States of America.

2. The Domain Name and Registrar

The disputed domain name <peekundkloppenburg.com> is registered with Fushi Tarazu, Incorporated.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 8, 2007. On January 9, 2007, the Center transmitted by email to Fushi Tarazu, Incorporated a request for registrar verification. The Complaint as initially filed identified Whois Privacy Protection Service, Inc as the Respondent. In response to its verification request the Center received an email confirming various matters on January 9, 2007, from eNom, and also indicating that the registrant was Demand Domains. The Center, noting that according to Internic.org the Registrar was Fushi Tarazu, Inc, then requested confirmation from eNom of the exact name of the registrar/entity with which the disputed domain name was registered, and confirmation that information being provided by eNom was being provided for and on behalf of that registrar and was up to date and complete on January 17, 2007. It transmitted this request initially on January 17, 2007, with a reminder on January 22, 2007. On January 23, 2007, the Center received confirmation from eNom that Fushi Tarazu, Inc is an eNom owned/operated subsidiary and that eNom owns the registry credentials and maintains the registrar database. Whois searches for <peekundkloppenburg.com> executed by the Center on January 24, 2007, at the “FushiTarazu.com” and “eNom.com” websites gave Whois Privacy Protection Service, Inc as ‘Registrant Contact’.

The Complainant amended its Complaint on January 31, 2007, with respect to the identity of the Respondent, by adding as a respondent the newly identified Demand Domains. In this case, Whois Privacy Protection Services, Inc appears to have been correctly identified in the Complaint as the registrant based on the Whois record at the time that the Complaint was filed. Panels confronted by identity shields have been prepared to treat both the initially identified registrant and the subsequently disclosed registrant together as Respondent. See, e.g., TDS Telecommunications Corporation v. Registrant [20758] Nevis Domains and Registrant [117460] Moniker Privacy Services, WIPO Case No. D2006-1620. For the purpose of the current proceeding and on the basis of WIPO UDRP precedent, the Panel accepts that both Whois Privacy Protection Service, Inc and Demand Domains should be named as respondents. For ease of reference, the Panel will refer to a single Respondent here.

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 February 2, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 22, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 23, 2007.

The Center appointed WiIliam A. Van Caenegem as the sole panelist in this matter on March 1, 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.

 

4. Factual Background

The Complainant is the registered proprietor of the trademarks PEEK UND CLOPPENBURG and PEEK & CLOPPENBURG for clothing, and for retail services in relation to clothing, footwear and headgear. The Complainant provides documentary evidence of its German (first registered October 2, 1990) and its international (No. 575698; first registered August 17, 1991) registrations for the mark PEEK & CLOPPPENBURG, as well as of its German trademark registration for the mark PEEK UND CLOPPENBURG (filing date January 20, 2005).

The Complainant’s turnover realized in its clothing stores under its trademarks was more than 1 billion Euros in 2005. It operates in Germany, where it is the largest retailer of fashion, and seven other European countries. The Complainant owns numerous cctld and gtld domain names incorporating the term ‘peekundcloppenburg’ and has an established presence on the Internet.

The domain name at issue was registered on March 29, 2006.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends the following:

The only difference between the Complainant’s trademark PEEK UND CLOPPENBURG and the domain name at issue is the substitution of ‘k’ for ‘c’. The minor substitution does not preclude a finding of confusing similarity. The same reasoning applies to the mark PEEK & CLOPPENBURG as ‘&’ is well known to stand for ‘and’ or the German ‘und’. This is an example of typosquatting which would cause Internet users who misspell the Complainant’s trademarks to be directed to the Respondent. Typosquatting has been repeatedly condemned in WIPO UDRP decisions.

The Respondent has no rights or legitimate interests in the domain name. There is no affiliation with, license or consent from the Complainant. There is no offering of bona fide goods or services, the presence at the Internet website corresponding to the domain name currently including a search engine which includes links to suppliers of sex-toys and clothing. The offering of goods or services by third parties via the Respondent’s links exceeds any theory of fair use. The domain name is not part of the Respondent’s legal or corporate name or common identifiers for it. The Respondent has no common law or registered rights in the marks.

Registration of a domain name that was well-known and which the Respondent was unavoidably aware of at the time of registration is itself proof of bad faith. Substituting the letter ‘c’ clearly demonstrates the Respondent’s intentions: to unfairly benefit from the Complainant’s trademark’s notoriety. Also the domain name was registered so as to sell it, as evidenced by the fact that the Respondent put the domain name up for sale on its website. Further, the Respondent is only a tool to permit an ill-intentioned owner to mask its true identity. This in itself constitutes evidence of bad faith.

B. Respondent

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

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The domain name, if not absolutely identical, is very similar to the Complainant registered trademark PEEK UND CLOPPENBURG. It only differs in the substitution of ‘k’ for ‘c’. This difference is insubstantial: visually it is minor, and aurally it may well be non-existent. Internet users are likely misspell the trademark in this manner and thus be led to the Respondent’s website. This is a classic example of typosquatting.

Consequently the panel finds that the domain name at issue is confusingly similar to the Complainant’s trademark.

B. Rights or Legitimate Interests

The Respondent is not affiliated with the Complainant, nor does it have the permission, consent or license of the Complainant to register the domain name at issue.

It is well established that in the absence of consent, authorization or license, the inclusions of a distinctive and well-known trademark of the kind at issue here, is prima facie evidence of the absence of rights or legitimate interests. The Respondent in this case has not provided evidence of any of the circumstances referred to in paragraph (4)(c)(i) to (iii) of the Policy. The domain name resolved to a website incorporating links to various third parties, including clothing suppliers, at the time it was accessed by the Complainant on January 5, 2007. When it was accessed by the Center on January 24, 2007, and at the time it was accessed by the Panel on March 10, 2007, it resolved to a website page purporting to deny further access to sexually explicit material unless by confirmation of the Internet user’s age. None of these uses indicate that the Respondent has any relevant prior rights or legitimate interests.

Consequently the Panel finds that the Respondent has no rights or legitimate interests with respect to the domain name at issue.

C. Registered and Used in Bad Faith

The choice of a domain name incorporating a well-known and distinctive trademark, in the absence of any evidence of rights or legitimate interests, is itself indicative of bad faith registration. Furthermore, the deliberate substitution of just one letter for another, where Internet users might easily misspell the domain name in just that manner, amounts to typosquatting and is further evidence of bad faith registration. This practice evidences an intention at the time of registration to benefit from the close similarity with a well-known mark, either by relying on confusion or error on the part of Internet users aware of the Complainant’s trademarks, or by trading the domain name.

As to bad faith use of the domain name, the Respondent has sought to benefit from the registration of the domain name by providing access to unrelated services. This it has done at various times by way either of listed links or by way of apparent access to adult material at the website to which the domain name resolves. This is indicative of an intentional attempt to attract, for commercial gain at least in part derived from third parties, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement.

As evidenced by the Complainant, the Respondent has offered to sell the domain name on the website “www.peekundkloppenburg.com”, indicating that it registered the domain name also with a view to selling it for valuable consideration.

Consequently the Panel holds that the domain was registered and used in bad faith.

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, <peekundkloppenburg.com> be transferred to the Complainant.

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WiIliam A. Van Caenegem
Sole Panelist

Dated: March 15, 2007