The Complainant’s contentions can be summarised as follows:<\/p>\n
A. Background history<\/strong><\/p>\n The Complainant, founded in 2002 in London by Shelley Tichborne, provides hand-crafted footwear and accessories such as bags, wallets, hats and gloves for men, women and children. The Complainant’s products are ethically produced, made in sustainable materials, and are sold online and also via selected boutiques and department stores worldwide, including in China.<\/p>\n The Complainant seeks to obtain the transfer of the disputed domain name <moushoesale.com> on the grounds set out in section B.2 below.<\/p>\n B.1 Preliminary Matter: Language of the Proceeding<\/strong><\/p>\n On the matter of the language of the proceedings, the Panel notes the following:<\/p>\n • <\/span>The Complaint is written in English and the Complainant has made a pre-emptive request that English be the language of this UDRP administrative proceeding;<\/p>\n • <\/span>The registrar’s verification response provided that the language of the registration agreement for the disputed domain name is Chinese; and<\/p>\n • <\/span>The Complainant’s grounds for English to be the language of this UDRP administrative proceeding can be summarised as follows: (i) the disputed domain name is formed by letters in Roman characters, as opposed to Chinese script, and incorporates the terms ‘shoe’ and ‘sale’, which are words in the English language; (ii) the disputed domain name resolves to a website which displays content in English; (iii) the Complainant is based in the UK and the Complainant’s representative in Sweden, and none of them have knowledge of Chinese language, but they are able to communicate in English, which is the primary language for international relations; and (iv) the Panel’s determination of Chinese as the language of the proceeding would be inequitable and burdensome owing to the delay and costs associated with translations.<\/p>\n B.2 Substantive grounds<\/strong><\/p>\n I. The disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights<\/strong><\/p>\n The Complainant submits that the disputed domain name <moushoesale.com> is confusingly similar to the Complainant’s trade mark, to the extent that the disputed domain name reproduces the trade mark MOU in its entirety. The addition of the generic terms ‘shoe’ and ‘sale’ to the disputed domain name string does not prevent a finding of confusing similarity with the Complainant’s trade mark MOU. <\/p>\n Furthermore, the gTLDs, in this case <.com>, are typically disregarded by UDRP panels under this Policy ground (see paragraph 1.11 the WIPO Panel Views on Selected UDRP Questions, Third Edition (‘WIPO Jurisprudential Overview 3.0’).<\/p>\n II. The Respondent has no rights or legitimate interests in respect of the disputed domain name<\/strong><\/p>\n The Claimant asserts that the Respondent lacks rights or legitimate interests in respect of the disputed domain name, owing to the following indicia:<\/p>\n • <\/span>The Respondent is not affiliated or otherwise connected with the Respondent, nor has the Complainant authorised the Respondent to use the trade mark MOU in any form, not least in the disputed domain name;<\/p>\n • <\/span>The Complainant does not hold any trade mark rights on the disputed domain name or the term ‘moushoesale’;<\/p>\n • <\/span>The disputed domain name and the term ‘moushoesale’ have no meaning in both English and Chinese languages;<\/p>\n • <\/span>There is no evidence that the Respondent has been commonly known by the disputed domain name or by the term ‘moushoesale’;<\/p>\n •<\/span> The Respondent is not making a legitimate non-commercial or fair use of the disputed domain name. The Respondent’s website offers for sale footwear products of a Complainant’s competitor;<\/p>\n • <\/span>The Respondent’s website previously hosted content bearing the Complainant’s trade mark MOU, apparently offering for sale MOU-branded goods, without any disclaimer in a clear and prominent manner stating its lack of relationship with the Complainant. Therefore, this prior use of the disputed domain name cannot be considered a bona fide use and it does not meet the cumulative requirements of the Oki Data test. Moreover, Respondent changed the content of the website once the Complainant has contacted the Registrar to submit a notice of infringement; and<\/p>\n • <\/span>The composition of the disputed domain name, which wholly incorporates the Complainant’s trade mark MOU, together with the generic terms ‘shoe’ and ‘sale’, reinforces the likelihood of confusion with the Complainant’s trade mark MOU.<\/p>\n In view of the above, the Complainant concludes that the Respondent has no rights or legitimate interests in the dispute domain name.<\/p>\n III. The Respondent registered and is using the disputed domain name in bad faith<\/strong><\/p>\n Registration<\/strong><\/p>\n The Complainant states that the disputed domain name was registered in bad faith, owing to the following indicia:<\/p>\n • <\/span>The Complainant’s trade mark MOU has been in use for more than a decade, well before the registration of the disputed domain name;<\/p>\n • <\/span>The Complainant holds numerous trade mark registration for MOU worldwide, including in China, where the Respondent appears to reside;<\/p>\n • <\/span>Internet users are likely to associate ‘mou shoe sale’ with the Complainant and its trade marks;<\/p>\n • <\/span>A simple search via online trade mark registers or through Google search engine would have revealed the existence of the Complainant and the trade mark MOU, such that it is inconceivable that the Respondent did not have the Complainant in mind at the time of registration of the disputed domain name;<\/p>\n • <\/span>Paragraph 3.1.4 of the WIPO Panel Views on Selected UDRP Questions, Third Edition (‘WIPO Jurisprudential Overview 3.0’)) provides that the mere registration of a domain name that is identical or confusingly similar to a famous trade mark, as it is the case here, by an unaffiliated entity, can by itself create a presumption of bad faith; and<\/p>\n • <\/span>The content of the Respondent’s website has changed following the Complainant’s contact with the Registrar to seek information to submit a notice of infringement, which supports the inference that the Respondent has registered the disputed domain name in bad faith.<\/p>\n Use <\/strong><\/p>\n Under this ground, the Complainant avers that the Respondent’s purpose is to capitalise on the reputation of the MOU trade mark by diverting Internet users seeking MOU products to the Respondent’s website, for financial gain, by intentionally creating a likelihood of confusion with the MOU trade mark as to the source, sponsorship, affiliation, or endorsements of the Respondent’s website and\/or the goods offered or promoted through the Respondent’s website ((paragraph 4(b)(iv) of the UDRP Policy).<\/p>\n The Complainant adduces evidence that the disputed domain name previously resolved to an online shop which prominently displayed the Complainant’s trade mark MOU on top of the landing page, in an unauthorised manner and without disclosing the lack of relationship with the Complainant.<\/p>\n Lastly, the Complainant argues that the current use of the disputed domain name diverts Complainant’s customers to an online shop which offers ON-branded footwear (a competitor of the Complainant), and that this disrupts the Complainant’s business by competing with the Complainant for Internet traffic, and by interfering with the Complainant’s ability to control the use of its trade marks.<\/p>\n The Complainant therefore concludes that the Respondent has registered and is using the disputed domain name in bad faith.<\/p>",
"other_legal_proceedings": " The Panel is unaware of any other pending or decided legal proceedings in respect of the domain name <moushoesale.com> (‘the disputed domain name’).<\/p>",
"no_response_filed": " The Complainant's contentions are set out above.<\/p>\n The Respondent has failed to serve a Response within the deadline prescribed under Rule 5 of the UDRP Rules, or at all.<\/span><\/p>",
"rights": " The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the UDRP Policy).<\/p>",
"no_rights_or_legitimate_interests": " The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the UDRP Policy).<\/p>",
"bad_faith": " 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 UDRP Policy).<\/p>",
"procedural_factors": " A. Complainant’s Language Request<\/strong><\/p>\n The Panel is given discretion under Rule 11 of the UDRP Rules to determine the appropriate language of the UDRP administrative proceeding. The Panel notes Rule 10 of the UDRP Rules, which vests the Panel with authority to conduct the proceedings in a manner it deems appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.<\/p>\n On this particular matter, the Panel takes the liberty to adopt the language of proceeding test applied in CAC Case no. 104144, Writera Limited v. alexander ershov, which helpfully sets out the following six guiding factors:<\/p>\n (i) the language of the disputed domain name string: the Panel considers that English is the only identifiable language in the disputed domain name string;<\/p>\n (ii) the content of the Respondent’s website: the Respondent’s website hosts content in English only, which suggests to the Panel that the Respondent has knowledge of the English language;<\/p>\n (iii) the language(s) of the Parties: the Complainant is a company based in England and the Respondent appears to be a Chinese national residing in China. Neither English nor Chinese would be considered neutral for both Parties. Consequently, this factor is immaterial to the Panel’s determination on this occasion; <\/p>\n (iv) the Respondent’s behaviour: the Panel notes that the Respondent has shown no inclination to participate in this UDRP administrative proceeding;<\/p>\n (v) the Panel’s overall concern with due process: the Panel has discharged its duty under Rule 10 (c) of the UDRP Rules; and<\/p>\n (vi) the balance of convenience: while determining the language of the UDRP administrative proceeding, the Panel has a duty to consider who would suffer the greatest inconvenience as a result of the Panel’s determination. On the one hand, the determination of English as the language of this UDRP administrative proceeding – a widely spoken language – is unlikely to cause the Respondent any inconvenience, not least given that the Respondent’s website hosts content in English only. The determination of Chinese as the language of this UDRP administrative proceeding, on the other hand, is very likely to cause the Complainant inconvenience, and to interfere with the overall due expedition of the proceedings under the UDRP Rules.<\/p>\n In view of the above factors, the Panel has decided to accept the Complainant’s language request, such that the decision in the present matter will be rendered in English.<\/p>\n The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.<\/p>",
"decision": "Accepted",
"panelists": [
"Yana Zhou"
],
"date_of_panel_decision": "2023-06-30 00:00:00",
"informal_english_translation": " The Complainant relies upon the following registered trade marks, amongst others:<\/p>\n • <\/span>EU trade mark registration no. 1001663, registered on 8 April 2009, designating, amongst others, China, for the figurative mark MOU, in classes 3 and 25 of the Nice Classification;<\/p>\n • <\/span>United States trade mark no. 3663689, registered on 4 August 2009, for the word mark MOU, in class 25 of the Nice Classification;<\/p>\n • <\/span>Chinese trade mark registration no. 15676762, registered on 28 December 2015, for the figurative mark MOU, in class 24 of the Nice Classification; and<\/p>\n • <\/span>Chinese trade mark registration no. 15676761, registered on 14 March 2016, for the figurative mark MOU, in class 26 of the Nice Classification.<\/p>\n The Complainant further relies on national trade marks worldwide held by the Complainant.<\/p>\n (Hereinafter, collectively or individually, ‘the Complainant’s trade mark’ or ‘the (trade) mark MOU’ interchangeably).<\/p>\n The Complainant advises that prior UDRP panels have recognised the reputation and well-known nature of the trade mark MOU (eg Mou Limited v Song Li Hong, WIPO Case No. D2018-2912, in respect of the domain name <mou-saleonline.com>).<\/p>\n Additionally, the Complainant informs that it has established an online presence through the use of domain names bearing the trade mark MOU, most notably <mou-online.com>, which was registered in 2006.<\/p>\n The disputed domain name was registered on 14 February 2023, and, at present, resolves to an online store on which products of a Complainant’s competitor appear to be commercialised, the particulars of which are discussed further below (‘the Respondent’s website’).<\/p>",
"decision_domains": {
"moushoesale.com": "TRANSFERRED"
},
"panelist": null,
"panellists_text": null
}