The Complainant is Mrs. Agnès Troublé, Paris, France; represented by Markplus International, France.
The Respondent is Chan Aero of Hong Kong, SAR of China. Further details of
the address of the Respondent are not available.
2. The Domain Name and Registrar
The disputed domain name <agnesbb.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 2, 2006. On November 3, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On November 4, 2006, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing contact details in the form of an email address for the Respondent.
The Center verified that 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 November 9, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was November 29, 2006. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on December 1, 2006.
The Center appointed Nick J. Gardner as the Sole Panelist in this matter on
December 18, 2006. 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 owner of a large number of registered trademarks for the term “agnes b” in stylized handwritten form, including for example International Trademark N°626.305 registered on October 12, 1994. The trademarks are generally registered in respect of items such as clothing and perfume. The Complainant does business as a designer and supplier of fashion items including clothing and accessories and there are more than 100 “agnes b” outlets in various countries throughout the world. The filed evidence establishes an extremely well known reputation in the name AGNES B.
The Complainant operates her own website at “www.agnesb.com”.
The Respondent appears to have registered the <agnesbb.com> domain name
on February 2006. The Respondent operates a website at “www.agnesbb.com”.
That website appears to be some form of discussion forum although its contents
are largely in Chinese characters and the nature of its content is not clear.
It contains at the top of the home page a stylized logo “agnes bb”
which is clearly a copy of the Complainant’s own handwritten logo, with
the addition of a further “b”.
5. Parties’ Contentions
A. Complainant
The Complainant says that the <agnesbb.com> domain name is confusingly similar to agnes b, which is a name in which she has rights. She says the public may think the site is connected with her. Irrespective of its contents there will in any case be “initial interest confusion”. She says the Respondent does not trade by the name agnesbb and does not have any right or legitimate interest in that name. She says the name is being used in bad faith in that the website carries a reproduction of her own logo, and appears to be directed to people in Hong Kong, where her own brand is well known.
B. Respondent
The Respondent did not submit any formal response to the Complainant’s
contentions. Service of the Complaint by email did however produce two email
responses from “Aero”, the first to the Center, the second to the
Complainant’s representatives. These e mails are very difficult to understand
but in effect appear to ask for the Complaint to be cancelled because the Respondent
says he no longer intends to use <agnesbb.com> “for my logo”
and indicates that he has made changes to the logo that appears on his website.
He says that the website is a discussion area for friends and classmates and
not available for commercial use.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Policy requires that the Respondent’s domain name is confusingly similar to a trademark in which the Complainant has rights. (Policy, paragraph 4(a)(i)). The Complainant has established she owns a number of registered trademarks in respect of “agnes b”. The domain name <agnesbb.com> is clearly similar to these trademarks. The addition of a further b is not sufficient to distinguish that domain name from what is in an unusual and distinctive combination of a particular name (agnes) with a specific letter (b). Accordingly this element of the Policy is satisfied.
B. Rights or Legitimate Interests
The Policy requires that the Respondent has no rights or legitimate interests in respect of the <agnesbb.com> domain name (Policy, paragraph 4(a)(ii)). There is no evidence that the designation agnesbb has any relationship to the Respondent or there is any reason that he has to legitimately adopt that term. In the absence of any Response from the Respondent the Complainant has established that this element of the Policy applies.
C. Registered and Used in Bad Faith
The Policy requires that the domain name was registered and is being used in bad faith. (Policy, paragraph 4(a)(iii)). It is clear that the <agnesbb.com> domain name has been chosen because of its association with the Complainant – the use by the Respondent of a stylized version of the Complainant’s own logo on the site shows this to be the case. Exactly why it was chosen or what its significance may be is not something the Panel can determine, given the website is not in English.
So far as can be determined from the print outs provided with the Complaint the format of the site is a typical bulletin board or chat room layout, and there is no obvious indication of advertising or other commercial activity. Accordingly on the evidence this use does not seem to sit squarely within any of the categories shown in paragraph 4(b) of the Policy as being evidence of use in bad faith. There may at least arguably be an intention to attract Internet users to the <agnessbb.com> by creating a likelihood of confusion (paragraph 4(b)(iv)) but the filed evidence does not establish whether or not this is being done for commercial gain. The Complaint itself is short of substance in this area. It asserts that the use was in bad faith because the Complainant’s mark is well known in Hong Kong and the Respondent in addition adopted the Complainant’s handwritten logo. It also relies upon the failure of the Respondent to reply to cease and desist letters.
On balance the Panel considers this case, on the available evidence, is at
the margin of what might be said to be bad faith. The list of factors set out
in paragraph 4(b) of the Policy is clearly non exhaustive. On the face of the
available evidence there is no obvious reason for the Respondent to have chosen
“agnesbb” as designation for a website, even to host a non commercial
bulletin board. He clearly did so because of its association with what is a
well known brand. Having done so he has not responded to cease and desist letters
and he has chosen not to file a Response to give the Panel a full explanation
of his reasons for choosing the name in the first place. The emails that he
has sent contain what appears to be an offer to remove the handwritten stylized
logo from the website, but provide no information at all as to why he chose
the name agnesbb in the first place, or what, if any, significance it has to
him and his activities when divorced from any connection with the Complainant.
In these circumstances the Panel infers that he did so in order to use the benefit
of the Complainant’s name, in connection with his own site. Absent an
explanation to the contrary from the Respondent, the Panel accepts the Complainant’s
submission that this amounts to 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 <agnesbb.com> be transferred to the Complainant.
Nick J. Gardner
Sole Panelist
Dated: December 27, 2006
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