The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).
The Complainant suggests that the Panel should determine this case in light of the provisions of paragraph 4(b)(i) (registration primarily to sell the domain name to a Complainant or its competitor for valuable consideration in excess of the Respondent’s costs related to the domain name) or 4(b)(ii) (registration in order to prevent the owner of the mark from reflecting the mark in a corresponding domain name, where there is a pattern of such conduct) of the Policy.
The Complainant has included a partial quotation of paragraph 4(b)(ii), which omits the phrase 'provided that [the Respondent] has engaged in a pattern of such conduct'. As such, the Complainant has not addressed this requirement either by argument or evidence, and the Panel must apply the full paragraph and not a selective quotation thereof. There is no basis for a finding of a pattern of conduct in the present case.
The Panel however acknowledges the need to look at the dispute in the round, applying the advice in the WIPO Jurisprudential Overview, version 3.0, para 3.1, that where a Complainant may not be able to demonstrate the literal or verbatim application of paragraph 4(b), evidence demonstrating that a respondent seeks to take unfair advantage of, abuse, or otherwise engage in behaviour detrimental to the complainant’s trademark would also satisfy the Complainant’s burden. The Panel can accept that the Respondent would have been aware of the Complainant and its marks when it first registered the disputed domain name, and may be engaged in 'passive holding' of the disputed domain name. The Panel notes that the Complainant has supplied examples of publicity regarding the launch of the Highsnobiety Gatezero retail store, dated June and July 2021 (that is, very briefly post-dating the registration of the disputed domain name in April 2021 and the acquisition of control of the said name by the present Respondent in May 2021), but that the specific mark associated with this store pre-dates the disputed domain name - and, of course, the Complaint's core activities and associated mark are long established and of a suitably high profile to be likely to be known to the Respondent.
The Panel does further accept, in light of the Complaint and the above findings, the clear and uncontested relevance of paragraph 4(b)(i), placing particular weight on the complete incorporation of the disputed domain, the clear offer of sale, the distinctiveness of the relevant marks, and the likelihood that the Respondent would have been aware of the Complainant, its marks, and its planned activities at the time of registration and in its continuing efforts to sell the disputed domain name.
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