WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Revlon Consumer Products Corporation v. Easy Weight Loss Info, Augustinus Ferry Yonatan Case No. D2010-0936 1. The Parties
The Complainant is Revlon Consumer Products Corporation of New York, United States of America, represented by an internal representative.
The Respondent is Easy Weight Loss Info, Augustinus Ferry Yonatan of Indonesia. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 8, 2010. On June 9, 2010, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On June 9, 2010, the Registrar 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 requirement 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”).
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 June 14, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was July 4, 2010. The Center received email communications from the Respondent on June 23 and 27, 2010, but the Respondent did not submit any formal response.
The Center appointed David Stone as the sole panelist in this matter on July 13, 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
The Complainant has manufactured, marketed and sold beauty products under the REVLON trade mark continuously since 1932. REVLON is a well-known trade mark in cosmetics and beauty care products. REVLON is a fanciful combination of the names of the Complainant's founders, Charles and Joseph Revson and Charles Lachma. It has no generic or descriptive meaning.
The Complainant and related entities sell REVLON products in approximately 175 countries, including Indonesia. The Complainant currently owns more than 200 domain names that incorporate the REVLON trade mark and variations of it. The Complainant (and related entities) own more than 2,600 trade mark applications/registrations worldwide that are or incorporate the word REVLON. This includes several trade mark registrations for REVLON in Indonesia.
The disputed domain name was registered on February 7, 2009. The disputed domain name resolves to a web page featuring sponsored links to websites of competitors of the Complainant. 5. Parties' Contentions A. Complainants
The Complainant alleges that the disputed domain name is confusingly similar to the REVLON mark, because it consists of the Complainant's well-known registered trade mark REVLON together with the common descriptive term “beauty”.
The Complainant submits that the Respondent has no legitimate interest in the disputed domain name, has not used the disputed domain name in connection with a bona fide offering of goods or services, owns no trade mark registrations for the disputed domain name, and has not been commonly known by the disputed domain name. Further, the Complainant has not licensed or otherwise permitted the Respondent to use its mark or the disputed domain name.
The Complainant submits that the Respondent has acted in bad faith in relation to the disputed domain name, as the similarity of the disputed domain name to the Complainant's trade mark means that the Respondent could not intend (or have intended) to develop a legitimate activity using the disputed domain name. Furthermore, the Complainant submits that the disputed domain name is being used to divert Internet users to other commercial websites, including competitors of the Complainant, through sponsored links.
The Complainant requests that the disputed domain name be transferred to Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions.
On June 23, 2010 the Respondent sent an email to the Center which states:
“Hi,
I received your letter, but I don't know exactly what you mean, because my English is not good.
I know that I bought domain , I don't know the rules that it is violate regulation.
That is ok to me to delete that domain or transfer to complainant.
Ferry”
On being made aware of the Respondent's communication, the Complainant indicated that it wished to proceed with these proceedings.
The Center reminded the Respondent of the date for any Response to be filed.
On June 27, 2010, the Respondent emailed the Center stating:
“Hi,
What shall I do for this? Transfer the domain or delete the domain?
Ferry”
When no Response was filed, the Center contacted the Respondent again noting that a Panel would be appointed. The Respondent emailed the Center on July 8, 2010 stating, relevantly:
“Hi
What shall I do for this?”
The Center received no further communications from the Respondent. 6. Discussion and Findings
As a preliminary point, the Panel must decide what effect to give the three communications from the Respondent. Two of the emails were within the time allocated by the Center for a Response, but were not in a form to indicate that they were a Response to the Complaint.
The Panel therefore takes the two earlier email communications into account for the purposes of the proceeding, but notes that the Panel's decision would not have been different if the third communication had been taken into account, or the two earlier communications had not been.
Paragraph 4(a) of the Policy requires the Complainant to prove each and all of the following three elements in order to prevail in these proceedings:
(i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The disputed domain name is the Complainant's well-known trade mark REVLON together with the word “beauty”.
Previous UDRP panels have held that adding common terms to a registered trade mark and registering the result as a domain name does not mitigate the confusing similarity between the domain name and the mark (EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., WIPO Case No. D2000-0047 and Parfums Christian Dior v. 1 Netpower, Inc., WIPO Case No. D2000-0022).
Indeed, previous UDRP panel decisions have applied this reasoning to trade marks registered by the Complainant: Revlon Consumer Products Corporation v. Laurent Morel,WIPO Case No. D2002-0215; and Revlon Consumer Products Corporation v. Domain Manager, PageUp Communications,WIPO Case No. D2003-0602.
In this case, the Panel finds that the addition of the descriptive word “beauty” to the Complainant's REVLON trade mark, by referencing the goods for which the mark is known, increases the likelihood of confusion: see Nintendo of America Inc. v. Fernando Sascha Gutierrez, WIPO Case No. D2009-0434; Nintendo of America Inc v. Marco Beijen, Beijen Consulting, Pokemon Fan Clubs Org., and Pokemon Fans Unite, WIPO Case No. D2001-1070; Google Inc. v. Thilak Raj, Net Jobs, WIPO Case No. D2009-0033; and LEGO Juris A/S v. Private, Registration/Dohe Dot, WIPO Case No. D2009-0753.
Accordingly the Panel finds that the Complainant has established element 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Guidance in relation to establishing rights or legitimate interests is provided in paragraph 4(c) of the Policy. Three circumstances are identified: (i) bona fide prior use; (ii) common association with the domain name and (iii) legitimate noncommercial use. The Complainant has made a prima facie case that none of these circumstances applies. The Respondent did not exercise his right to respond substantively in these proceedings: rather, he has offered to transfer or cancel the disputed domain name. Thus, he has failed to rebut the prima facie case made by the Complainant (or advance any other argument supporting rights or legitimate interests).
Accordingly the Panel finds that the Complainant has established element 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Guidance regarding establishing bad faith is provided in paragraph 4(b) of the Policy. Four (non-exhaustive) circumstances are identified where the respondent's intention in registering a domain name may provide evidence of bad faith. These intentions may be summarised as follows: (i) to sell the domain name to the rights holder at a profit; (ii) to prevent the rights holder registering a domain name; (iii) to disrupt the business of a competitor; and (iv) to divert Internet traffic. The Complainant refers primarily to the last circumstance. The Respondent has not submitted any counter-arguments: rather, he has offered to transfer or cancel the domain name.
Given the fame of the REVLON mark, the Panel finds that in all likelihood the Respondent would have been aware of the Complainant's well-known REVLON trade mark at the time he registered the disputed domain name. This is emphasised by the Respondent's choice of the word “beauty” as part of the disputed domain name. The website at the disputed domain name has been set up to provide links to websites of the Complainant's competitors, no doubt on a “pay per click” basis. Applying the comments of the panellist in L'Oreal, Biothern, Lancôme Parfums et Beauté & Cie v. Unasi, Inc., WIPO Case No. D2005-0623, the Panel therefore finds that the Respondent intentionally attempted to attract, for commercial gain, Internet users to his web site (and hence divert Internet traffic) by creating a likelihood of confusion with the Complainant's mark.
Accordingly the Panel finds that the Complainant has established element 4(a)(iii) of the Policy. 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 disputed domain name be transferred to the Complainant.
David Stone
Sole Panelist
Dated: July 27, 2010
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