Vladimirovich
WIPO Case No. D2023-3542
•27-10-2023
ARBITRATION
AND
| MEDIATION CENTER |
ADMINISTRATIVE PANEL DECISION
Next Group Plc v. Якимов Максим Владимирович/Yakimov Maxim
Vladimirovich
Case No. D2023-3542
1. The Parties
The Complainant is Next Group Plc, United Kingdom, represented by CSC Digital Brand Services Group AB,
Sweden.
The Respondent is Якимов Максим Владимирович/Yakimov Maxim Vladimirovich, Ukraine.
2. The Domain Name and Registrar
The disputed domain name <loveandroses.store> is registered with Hosting Ukraine LLC (ua.ukraine) (the
“Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on August
22, 2023. On August 23, 2023, the Center transmitted by email to the Registrar a request for registrar
verif ication in connection with the disputed domain name. On August 25, 2023, the Registrar transmitted by
email to the Center its verification response disclosing registrant and contact information for the disputed
domain name which differed from the named Respondent (Hosting Ukraine LLC) and contact information in
the Complaint. The Center sent an email communication to the Complainant on August 25, 2023 providing
the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an
amendment to the Complaint. The Complainant f iled an amended Complaint on August 28, 2023.
On August 25, 2023 the Center informed the Parties in English and Russian that the language of the
registration agreement for the disputed domain name was Russian. On August 28, 2023, the Complainant
requested English to be the language of the proceeding. The Respondent did not submit any comment on
the Complainant’s request.
The Center verif ied that the Complaint together with the amended Complaint satisf ied the formal
requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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”).
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In accordance with the Rules, paragraphs 2 and 4, the Center formally notif ied the Respondent of the
Complaint in English and Russian, and the proceedings commenced on September 4, 2023. In accordance
with the Rules, paragraph 5, the due date for Response was September 24, 2023. The Respondent did not
submit any response. Accordingly, the Center notif ied the Respondent’s default on October 3, 2023.
The Center appointed Assen Alexiev as the sole panelist in this matter on October 13, 2023. The Panel
f inds 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 a British multinational clothing, footwear and home products retailer founded in 1864. It
has around 700 stores in the United Kingdom, Europe, Asia and the Middle East. In 2021, the Complainant
launched its Love & Roses boutique brand of women’s everyday wear.
The Complainant’s wholly owned subsidiary Lipsy Limited is the owner of the following trademark
registrations for the sign “LOVE&ROSES” (the “LOVE&ROSES trademark”):
| - | the European Union trademark LOVE&ROSES with registration No. 018280430, registered on |
| February 18, 2021 for goods and services in International Classes 18, 25 and 35; and | |
| - | the International trademark LOVE&ROSES with registration No. 1683110, registered on January 6, |
| 2022 for goods and services in International Classes 18, 25 and 35, designating Ukraine. |
The Complainant’s domain name <loveandroses.co.uk>, registered on November 6, 2020, redirects to the
Complainant’s of f icial website at “ displaying Love & Roses branded goods.
The disputed domain name was registered on February 27, 2023. It is currently inactive. At the time of filing
of the Complaint, the disputed domain name resolved to a website displaying the text “Love&Roses
Site is undergoing maintenance. Site will be available soon. Thank you for your patience!”, and the copyright
notice “© Love&Roses 2023”.
5. Parties’ Contentions
A. Complainant
The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer
of the disputed domain name.
The Complainant states that the disputed domain name is confusingly similar to its LOVE&ROSES
trademark, because it consists solely of this trademark. According to the Complainant, the replacement of
the ampersand with the word “and” does not diminish the confusing similarity between the disputed domain
name and the Complainant’s trademark, as they mean the same.
According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed
domain name, because it has obtained no authorization to use the Complainant’s LOVE&ROSES trademark
in any manner, including in domain names. The Complainant adds that the Respondent is not commonly
known by the disputed domain name and his name does not resemble it. According to the Complainant, the
Respondent has not used the disputed domain name for any legitimate purpose, because it directs Internet
users to a website that reads “Site is undergoing maintenance” and generally lacks content.
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The Complainant contends that the disputed domain name was registered and is being used in bad faith. It
notes that it has marketed and sold its goods and services using the LOVE&ROSES trademark for two years
prior to the Respondent’s registration of the disputed domain name on February 27, 2023. According to the
Complainant, the Respondent had knowledge of the Complainant’s LOVE&ROSES trademark when
registering the disputed domain name, whose composition shows that the Respondent registered it targeting
the Complainant’s LOVE&ROSES trademark.
The Complainant notes that it first tried to contact the Respondent on June 21, 2023, through a cease-and-
desist letter sent by email, but its ef forts to solve the matter amicably was unsuccessful.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Procedural issue - Language of the proceeding
The language of the Registration Agreement for the disputed domain name is Russian. Pursuant to the
Rules, paragraph 11(a), in the absence of an agreement between the Parties, or unless specif ied otherwise
in the registration agreement, the language of the administrative proceeding shall be the language of the
registration agreement.
In exercising its discretion to use a language other than that of the registration agreement, the Panel has to
exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all
relevant circumstances of the case, including matters such as the parties’ ability to understand and use the
proposed language, time and costs (see WIPO Overview of WIPO Panel Views on Selected UDRP
Questions, Third Edition (“WIPO Overview 3.0”), section 4.5.1).
The Complaint was filed in English. The Complainant requests that the language of the proceeding, stating
that it is unable to communicate in Russian and the translation of the Complaint would burden it and delay
the proceedings. The Complainant points out that the website at the disputed domain name features the
Complainant’s LOVE&ROSES trademark and includes the English language phrases “Site is undergoing
maintenance” and “Site will be available soon. Thank you for your patience!”.
The Center has sent all its communications to the Respondent in both English and Russian, and has invited
the Respondent to express its views on the language of the proceeding. The Respondent has not submitted
a Response or any objections to the Complainant’s request that the proceedings be held in English.
Taking into account all the above, the Panel considers that the Respondent would not be disadvantaged if
the language of the proceeding is English, and that using the English language in this proceeding would be
fair and ef f icient.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the
language of the proceeding shall be English.
6.2. Further Procedural Considerations – Location of the Respondent
Under paragraph 10 of the Rules, the Panel is required to ensure that the Parties are treated with equality
and that each Party is given a fair opportunity to present its case, and also that the administrative proceeding
takes place with due expedition. The location of the Respondent disclosed by the Registrar appears to be in
Ukraine, which is subject to an international conf lict at the date of this Decision that may impact case
notif ication. It is therefore appropriate for the Panel to consider, in accordance with its discretion under
paragraph 10 of the Rules, whether the proceeding should continue.
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The record shows that the Center’s written notice could not be delivered by postal mail to the Respondent’s
mailing address disclosed by the Registrar, in terms of the paragraph 2(a)(i) of the UDRP Rules. However, it
appears that the Notification of Complaint’s emails were delivered to the Respondent’s email address, as
provided by the Registrar. There is no evidence that the case notification was not successfully delivered to
the disclosed Respondent’s email address. The Notification of Complaint and the written communication
were also sent by the Center via the Registrar’s privacy protection email address for the disputed domain
name and at the privacy service postal address, and both Notif ication of Complaint emails and written
communication were delivered.
As noted above, the Complainant has submitted evidence showing that the disputed domain name
previously resolved to a website that contained notices in English and displayed the Complainant’s
LOVE&ROSES trademark. Following the submission of the Complaint, the disputed domain name was
deactivated. The Respondent thus appears to be capable of controlling the disputed domain name and its
content and apparently has received notification of the Complaint by email. It is also reasonable to assume
that the correspondence from the Center delivered to the Registrar’s privacy protection email address for the
disputed domain name and to the privacy service postal address have been transmitted to the Respondent.
Therefore, it appears that the Respondent would have been able to formulate and f ile a Response in the
administrative proceeding in case it wished to do so.
The Panel therefore concludes that the Respondent allegedly located in Ukraine has been given a fair
opportunity to present its case, and so that the administrative proceeding takes place with due expedition,
the Panel will proceed to a Decision accordingly.
6.3. Substantive Issues
A. Identical or Confusingly Similar
It is well accepted that the f irst element functions primarily as a standing requirement. The standing (or
threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between
the Complainant’s trademark and the disputed domain name. WIPO Overview 3.0, section 1.7.
Based on the available record, the Panel f inds the Complainant has shown rights in respect of the
LOVE&ROSES trademark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1.
The Complainant has submitted evidence that its wholly owned subsidiary Lipsy Limited is the owner of the
LOVE&ROSES trademark. As discussed in section 1.4.1 of the WIPO Overview 3.0, a trademark owner’s
af f iliate such as a subsidiary of a parent or of a holding company, or an exclusive trademark licensee, is
considered to have rights in a trademark under the UDRP for purposes of standing to f ile a complaint. The
Panel sees no reason not to apply the same approach here, and finds that the Complainant has rights in the
LOVE&ROSES trademark for the purposes of the Policy.
The Panel f inds the LOVE&ROSES trademark is recognizable within the disputed domain name.
Accordingly, the disputed domain name is confusingly similar to the LOVE&ROSES trademark for the
purposes of the Policy. WIPO Overview 3.0, section 1.7.
The only dif ference between the LOVE&ROSES trademark and the disputed domain name is that the
ampersand in the trademark is replaced by the word “and” in the disputed domain name. Since they have
the same meaning, the Panel finds that this dif ference does not prevent a f inding of confusing similarity
between the disputed domain name and the LOVE&ROSES trademark for the purposes of the Policy.
WIPO Overview 3.0, section 1.8.
Based on the available record, the Panel therefore f inds that the f irst element of the Policy has been
established.
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B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate
rights or legitimate interests in a disputed domain name.
While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that
proving a respondent lacks rights or legitimate interests in a domain name may result in the often-impossible
task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the
respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or
legitimate interests, the burden of production on this element shifts to the respondent to come forward with
relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to
come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.
WIPO Overview 3.0, section 2.1.
Having reviewed the record, the Panel finds the Complainant has established a prima facie case that the
Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not
rebutted the Complainant’s prima facie showing and has not come forward with any relevant evidence
demonstrating rights or legitimate interests in the disputed domain name such as those enumerated in the
Policy or otherwise.
There is no indication that the Respondent is commonly known by the disputed domain name, that it has
used the disputed domain name in connection with a bona fide offering of goods or services or that it has
carried out a legitimate noncommercial or fair use of it. The evidence in the case shows that the disputed
domain name has resolved to a webpage containing the text “Love&Roses” both at the top and at the bottom
where it was included in the copyright notice. In both places, this text is written with an ampersand, rather
than with the word “and”, which makes it identical to the Complainant’s trademark. The disputed domain
name is confusingly similar to the LOVE&ROSES trademark and to the Complainant’s domain name
<loveandroses.co.uk>, and is registered in the “.store” generic Top-Level Domain (“gTLD”), which makes it
appear as related to an online shop selling the Complainant’s Love&Roses collection. In the absence of any
allegation or evidence to the contrary, all this supports the Complainant’s prima facie case that the
Respondent is targeting the Complainant and its LOVE&ROSES trademark with the registration and use of
the disputed domain name, and that it does not have rights or legitimate interests in it.
Based on the available record, the Panel therefore f inds that the second element of the Policy has been
established.
C. Registered and Used in Bad Faith
The Panel notes that for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy
establishes circumstances, in particular but without limitation, that if found by the Panel to be present, shall
be evidence of the registration and use of a domain name in bad faith.
Paragraph 4(b) of the Policy sets out a list of non-exhaustive circumstances that may indicate that a domain
name was registered and used in bad faith, but other circumstances may be relevant in assessing whether a
respondent’s registration and use of a domain name is in bad faith. WIPO Overview 3.0, section 3.2.1.
Panels have found that the non-use of a domain name (including a blank or “coming soon” page) would not
prevent a f inding of bad faith under the doctrine of passive holding. Having reviewed the record, the Panel
f inds the non-use of the disputed domain name does not prevent a f inding of bad faith in the circumstances
of this dispute. While panelists will look at the totality of the circumstances in each case, factors that have
been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness
or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide
any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of
false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any
good faith use to which the domain name may be put. WIPO Overview 3.0, section 3.3.
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The webpage at the disputed domain name stated that it was undergoing maintenance and would be
available soon. As discussed above in this decision, the Respondent has failed to submit a Response or to
provide any evidence of actual or contemplated good-faith use of the disputed domain name, and the
composition of the disputed domain name, being confusingly similar to the Complainant’s LOVE&ROSES
trademark and to the Complainant’s domain name <loveandroses.co.uk>, creates an appearance that it is
related to an online shop selling the Complainant’s Love&Roses clothing collection. This appearance is
further reinforced by the content of the webpage at the disputed domain name which reproduces the
Complainant’s LOVE&ROSES trademark with the ampersand rather than with the word “and”, as in the
disputed domain name itself, and by the fact that this trademark is included in the copyright notice at the
bottom of the webpage. In these circumstances, it appears as more likely that the Respondent’s intentions
for the registration and use of the disputed domain name were to target the Complainant and its distinctive
LOVE&ROSES trademark in an attempt to attract, for commercial gain, Internet users by creating a
likelihood of confusion with this trademark.
Taking all the above into account, the Panel therefore finds that in the circumstances of this case the passive
holding of the disputed domain name does not prevent a f inding of bad faith under the Policy.
Based on the available record, the Panel therefore f inds that the third element of the Policy has been
established.
7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel
orders that the disputed domain name <loveandroses.store> be transferred to the Complainant.
/Assen Alexiev/ Assen Alexiev
Sole Panelist
Date: October 27, 2023
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