{ "case_number": "CAC-ADREU-007390", "time_of_filling": null, "domain_names": [ "ggdbsneakers.eu" ], "case_administrator": "Aneta Jelenová (Case admin)", "complainant": [ "Golden Goose S.p.A. (Golden Goose S.p.A.)" ], "complainant_representative": null, "respondent": [ "li dazhou (li dazhou)" ], "respondent_representative": null, "factual_background": "On 1.10.2016 li dazhou (hereinafter, the \"Respondent\") registered the domain name (hereinafter \"the Domain Name\" or the \"disputed domain name\"). \r\n\r\nOn 12.12.2016 the company Golden Goose S.p.A. (hereinafter, the \"Complainant\") filed a complaint before the ADR Center for .eu of the Czech Arbitration Court, requesting the transfer of the disputed Domain Name to Golden Goose S.p.A. \r\n\r\nOn 15.12.2016 the EURid verified that the Respondent is the registrant of the disputed Domain Name. \r\n\r\nThe Respondent was duly notified of the ADR proceedings by email and by registered mail to the addresses he provided to the EURid. The registered mail communication went undelivered and the Respondent failed to file a response to the complaint. Therefore, the Center issued a notification of Respondent's default.", "other_legal_proceedings": "The Complainant submitted that on 1.12.2016 filed a complaint with the Guardia di Finanza (Italian anti-counterfeit authority) against the use of the Respondent's website. However the Panel is not aware that this complaint resulted in legal proceedings. Anyway, even if this were the case, according to Paragraph A4 and A5 of the ADR Rules, an ADR .eu proceeding shall not be prejudiced by any court proceeding, and as long as court proceedings are pending, panels can proceed to a decision.\r\n\r\nThe Panel is not aware of any other pending or decided legal proceedings relating to the disputed domain name.", "discussion_and_findings": "According to Article 21(1) of the Commission Regulation (EC) 874\/2004 and to Paragraph B11(d)(1) of the ADR Rules, the Complainant must show that: the disputed domain name is identical or confusingly similar to a name in respect of which a right is recognised or established by national and\/or EU law (point A below); and has been registered by its holder without rights or legitimate interest in the name (B); or has been registered or is being used in bad faith (C). \r\n\r\n\r\nA. Identity or confusing similarity \r\n\r\nThe Panel found out that the Complainant has provided evidence of being the owner of at least one trademark registration for the GGDB word mark (as listed above, from now on \"the Trademark\") registered for goods in classes 18 and 25 as an International Registration covering several jurisdictions, including the European Union. \r\n\r\nIn comparing the domain name to the Trademark, it should be taken into account that the suffixes, including the .eu top level domain, may be excluded from consideration as being merely a functional component of a domain name. \r\n\r\nThe Panel therefore finds that the disputed domain name is confusingly similar to the Complainant's Trademark, as it begins with and incorporates the Trademark in its entirety, and the sole additional element -sneakers- is a descriptive term widely used in the fashion industry (also by non-English public) to describe some of the goods for which the marks are registered. \r\n\r\nThe first requirement of Article 21(1) of the Commission Regulation (EC) 874\/2004 and of § B11(d)(1) of the ADR Rules is therefore met. \r\n\r\n\r\nB. Rights or legitimate interest to the Domain Name \r\n\r\nThe Panel found out that, according to the evidence filed by the Complainant, prior to notice of the present dispute and still today the Respondent had been using domain name in connection with offering of goods of the same type and actually very similar to the ones produced and marketed by the Complainant.\r\nIn fact the Domain Name's homepage is an e-commerce webpage, selling sneakers at a discount price.\r\n\r\nThe Complainant states that the Respondent has no rights in the disputed domain name, as the Respondent is not a licensee, distributor or authorised agent of the Complainant.\r\n\r\nIt is well-established that the burden of proof of the above lies on the Complainant; however, satisfying the burden of proof which lies in a lack of the Respondent's rights or legitimate interests is potentially quite onerous (almost a probatio diabolica), as it's always the case when proving a negative circumstance instead of a positive one. Accordingly, it is sufficient that the Complainant shows prima facie evidence in order to shift the burden on the Respondent (see e.g. CAC 5235 or CAC 1827 ). \r\nIn case the Respondent had rights or legitimate interests, the Panel assumes that it would have advised the Panel of these. However, by not filing a response (a circumstance which in itself could be considered as a ground to accept the Complainants' claim, according to § B10(a) of the ADR Rules), the Respondent failed to prove its rights and legitimate interest in the Domain Name (see e.g. CAC 2235 or CAC 5903 ). \r\n\r\nFurthermore the Panel observes that there is no relation, disclosed to the Panel or otherwise apparent from the record, between the Respondent and the Complainant. Lastly there is no indication before the Panel that the Respondent is commonly known as GGDB, and the Respondent's name is completely different from the disputed domain name.\r\n\r\nThe Panel therefore concludes that, on the balance of probabilities, the Domain Name was registered by the Respondent without rights or legitimate interest in accordance with Article 21(1) of the Commission Regulation (EC) 874\/2004 and of § B11(d)(1) of the ADR Rules. \r\n\r\n\r\n\r\nC. Bad faith \r\n\r\nAlthough the literal text of the Commission Regulation (EC) 874\/2004 and of the ADR Rules does not mandate to examine the Respondent's bad faith requirement once the lack of rights or legitimate interests requirement is satisfied, the Panel will now also examine the requirement of bad faith, in order to make a complete assessment and in line with the best practices in the matter. \r\n\r\nAs far as the bad faith in the use of the disputed domain name is concerned, the Panel took into consideration evidence submitted by the Complainant which shows that the Respondent in setting up an e-commerce website selling sneakers branded with the Complainant's trademark wants to create the false impression that he is affiliated with the Complainant and wants to profit of the confusion of the products (see e.g. CAC 7202, or CAC 6458, ).\r\nThe Panel considers that, on the balance of the probabilities, such set-up was intentionally used to make a profit out of the Complainant's name and goodwill and therefore constitutes a finding of Respondent's bad faith. \r\n\r\nAs far as the bad faith in the registration of the disputed domain name is concerned, the Panel considered the following.\r\nGiven the widespread and longstanding presence of the Complainants' trademarks and products both online, in several publications and with actual retail shops in many European countries, it is likely that the Respondent was aware of the Complainants' trademarks and other domain names registrations as well of the Complainant's business, and thus proceeded to registration in bad faith. \r\n\r\nFinally, and even more decisively, as noted in the WhoIs of the disputed domain name, the Respondent provided the Registrar with false contact details when he registered the domain name. The Respondent indicated France as his country of residence, while the city was recorded as HongKong, a city actually located in Asia. Also the submitted telephone\/fax number begins with +86, which is the international phone code for China. \r\nIt appears that the Respondent's purpose, in supplying false address and contact details, was to hide his true business address when registering the Domain Name. Several decisions establish that supplying false information for a domain name registration, in order to hide the registrant's identity, can be considered evidence of bad faith (see e.g. CAC 6813 or CAC 6585 ). \r\n\r\nThe third requirement of Article 21(1) of the Commission Regulation (EC) 874\/2004 and of § B11(d)(1) of the ADR Rules is therefore, on the balance of probabilities, also met.\r\n\r\n\r\nFor Golden Goose S.p.A. is a company with registered offices in Italy as evidenced in the extract obtained by the Panel with a Chamber of Commerce enquiry, the Complainant satisfies the eligibility criteria as set out in Article 4(2)(b) of Regulation (EC) 733\/2002.", "decision": "For all the foregoing reasons, in accordance with Paragraphs B12 (b) and (c) of the Rules, the Panel orders that\r\nthe domain name GGDBSNEAKERS.EU be transferred to the Complainant.", "panelists": [ null ], "date_of_panel_decision": "2017-03-27 00:00:00", "informal_english_translation": "I. Disputed domain name: GGDBSNEAKERS.EU\r\n\r\nII. Country of the Complainant: ITALY, country of the Respondent: FRANCE\r\n\r\nIII. Date of registration of the domain name: 01 October 2016\r\n\r\nIV. Rights relied on by the Complainant (Art. 21 (1) Regulation (EC) No 874\/2004) on which the Panel based its decision:\r\n 1. word trademark registered in European Union, reg. No. IR 1242358, for the term GGDB, filed on 11 July 2014, registered on 11 July 2014 in respect of goods and services in classes 18, 25\r\n\r\nV. Response submitted: No\r\n\r\nVI. Domain name is confusingly similar to the protected rights of the Complainant\r\n\r\nVII. Rights or legitimate interests of the Respondent (Art. 21 (2) Regulation (EC) No 874\/2004):\r\n 1. No\r\n 2. Why: no relation between the Respondent and the Complainant; no evidence that the Respondent has been commonly know by the Domain Name.\r\n\r\nVIII. Bad faith of the Respondent (Art. 21 (3) Regulation (EC) No 874\/2004):\r\n 1. Yes\r\n 2. Why: website used for an e-commerce website which wants to profit from the confusion of the products and from the Complainant's name and goodwill; likely knowledge by the Respondent of the Complainant's trademarks and domain names; false address provided by the Respondent to the Registrar.\r\n\r\nIX. Other substantial facts the Panel considers relevant: none\r\n\r\nX. Dispute Result: Transfer of the disputed domain name\r\n\r\nXI. Procedural factors the Panel considers relevant: none\r\n\r\nXII. Is Complainant eligible? Yes", "decision_domains": [], "panelist": null, "panellists_text": null }