WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Conforama Holding v. Ying Liu Case No. D2010-0094 1. The Parties
The Complainant is Conforama Holding of France, represented by Cabinet Santarelli, France.
The Respondent is Ying Liu of United States of America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 21, 2010. On January 21, 2010, the Center transmitted by email to eNom a request for registrar verification in connection with the Domain Name. On January 21, 2010, eNom transmitted by email to the Center its verification response, confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied 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”).
The Panel is satisfied that, in accordance with the Rules, paragraphs 2(a) and 4(a), the Center has discharged its responsibility to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint, and that the proceeding commenced on January 25, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was February 14, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 15, 2010.
The Center appointed Alan L. Limbury as the sole panelist in this matter on February 22, 2010. 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
Since 1987 the Complainant has been a French retailer of furnishings, decoration products, electrical products and home appliances. It is the registered proprietor of numerous CONFO trademarks, including French registration No. 1 322 277 dated September 5, 1985. That mark is well-known in France.
The Domain Name was registered on November 16, 2009. It resolves to a website in the French language containing links to decoration, electrical and home appliance websites of third parties which compete with the Complainant.
On November 18, 2009, a “Dan Baron” sent an email to the Complainant's CEO saying “We acquired the domain C recently. It is now available at the price of EUR 15000”. 5. Parties' Contentions A. Complainant
The Complainant says the Domain Name is identical to its CONFO trademark and that the Respondent has no rights or legitimate interests in the Domain Name, which was registered and is being used in bad faith.
As to legitimacy, the Complainant says the Respondent does not have the permission of the Complainant to use its CONFO mark nor to register any domain name including that mark; that to the Complainant's knowledge the Respondent has no rights or legitimate interests in the Domain Name; that the Domain Name was registered for the purpose of selling it to the Complainant and therefore the Respondent cannot pretend to have done so in order to develop a legitimate noncommercial or fair use; and that the use of the Domain Name is not legitimate or bona fide.
As to bad faith, the Complainant says the Respondent was aware of the Complainant because the Domain Name resolves to a search service in the French language with links to the Complainant's competitors; that Mr. Baron must have been acting on behalf of the Respondent, as he was found to have done in virtually identical circumstances in Future Publishing Limited v. AK Karato, John Wong,WIPO Case No. D2009-1349; that the Domain Name was registered for the purpose of selling it to the Complainant for more than the Respondent's out-of-pocket expenses in registering the Domain Name; and that the Domain Name was most likely registered in order to prevent the Complainant from reflecting its CONFO marks in a corresponding domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
To qualify for cancellation or transfer of a domain name, a complainant must prove each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(ii) the domain name has been registered and is being used in bad faith.
A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, the complainant's asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc.,WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109; SSL International plc v. Mark Freeman,WIPO Case No. D2000-1080 and AltaVista Company v. Grandtotal Finances Limited et al.,WIPO Case No. D2000-0848. A. Identical or Confusingly Similar
The Domain Name comprises the Complainant's CONFO trademark and the inconsequential gTLD “com”, which may be ignored: Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429.
Accordingly, the Panel finds that the Domain Name is identical to the Complainant's CONFO trademark. The Complainant has established this element of its case. B. Rights or Legitimate Interests
The Panel finds that the CONFO mark is distinctive and well-known. The Complainant's supported assertions are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in the Domain Name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that domain name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and the cases there cited. The Respondent has made no attempt to do so.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Domain Name. The Complainant has established this element of its case. C. Registered and Used in Bad Faith
The conclusion is irresistible that Mr. Baron was acting on behalf of the Respondent in offering the Domain Name for sale to the CEO of the Complainant for EUR 15,000 two days after the Domain Name was registered. These circumstances indicate that the Respondent has registered the Domain Name primarily for the purpose of selling the Domain Name registration to the Complainant, the owner of the CONFO trademark, for valuable consideration in excess of the Respondent's documented out-of-pocket costs directly related to the Domain Name. Under the Policy, paragraph 4(b)(i), such circumstances shall be evidence of the registration and use of the domain name in bad faith for purposes of the Policy, paragraph 4(a)(iii).
Accordingly, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith. The Complainant has established this element of its case. 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 be transferred to the Complainant.
Alan L. Limbury
Sole Panelist
Dated: March 4, 2010
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