The Complainant is FragranceX.com, Inc. of New York, United States of America, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
The Respondent is Argosweb Corp a/k/a Oleg Techino in this name and under various aliases of Mahe, Seychelles; WuWeb Pty Ltd of Hong Kong, SAR of China; Alichec Inc. of Tortola, British Virgin Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland; Belroots Pty Ltd of Sao Paulo, Brazil; Crystal Image Pty Ltd of Mahe, Seychelles; Elarson & Associates Pty Ltd of Helsinki, Finland; Lidnick Webcorp of Singapore; Liquid SEO Limited of Hong Kong, SAR of China; Loshedina Inc of Bandar Seri Begawan, Brunei Darussalam; Luchichang Pty Ltd of Shanghai, People’s Republic of China; Netmilo Pty Ltd of Sofia, Bulgaria; Orel Hlasek LLC of Lausanne, Switzerland; Volchar Pty Ltd of Auckland, New Zealand; Web Pescados LLC of Barcelona, Spain; Webatopia Marketing Limited of Isle of Man; ZincFusion Limited of Gibraltar, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland; Chin-Hui Wu of Beijing, China; Domain Administrator of Brussels, Belgium; Denholm Borg of Oslo, Sweden; Denesh Kumar of New Delhi, India; Marcelos Vainez of Quezon, Philippines; Alex Ovechkin of Moscow, Russian Federation; Vlad Obchikov of St. Petersburg, Russian Federation. 2. The Domain Names and Registrar
The disputed domain names , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , and are registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 27, 2010. On July 27, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain names. On July 27, 2010, GoD, Inc. transmitted by email to the Center its verification response confirming that the Respondents are listed as the registrants of one or more disputed domain names 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”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified each Respondent of the Complaint, and the proceedings commenced on August 4, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 24, 2010. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on August 25, 2010.
The Center appointed John Swinson as the sole panelist in this matter on September 2, 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. The Respondent
The Complainant lists a total of 37 disputed domain names and 24 respondents. The Complainant has requested that the Respondents be consolidated and the matter be decided as a single Complaint. It is the Complainant’s contention that that the last 22 named respondents are fictitious aliases for the first named respondent, Argosweb Corp a/k/a Oleg Techino.
Previous panels have found that proceedings may be heard in a single Complaint, where it is clear that the same person is registering different domain names using a fictitious alias (see Yahoo!, Inc v. Somsak Sooksripanich and Others,WIPO Case No. D2000-1461, A, Inc. v. Lorna Kang a/k/a Yong Li a/k/a Mahmoud Nadim a/k/a The Data in B’s WHOIS Database is p a/k/a Amjad Kausar,WIPO Case No. D2005-0635 and General Electric Company v. Marketing Total S.A,WIPO Case No. D2007-1834).
The Complainant has submitted that 20 of the 24 Respondents in this case share the same name as respondents in Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537, including the primary respondent (Oleg Techino). In that case, the complainant was unsuccessful in locating these respondents, even with the assistance of an investigator. The panel in that dispute concluded that these respondents are fictitious alias for Oleg Techino. Accordingly, this Panel is able to infer that the Respondents in this matter who share the same name as a respondent in the Barnes & Noble case are aliases for Argosweb Corp a/k/a Oleg Techino (see also a similar situation in General Electric Company v. Marketing Total S.A,WIPO Case No. D2007-1834).
The Panel has considered the position relating to the 4 remaining Respondents (namely Argosweb Corp., Chin-Hui Wu, Denholm Borg and Domain Administrator) separately as they are not referred to in the Barnes & Noble decision. The Panel has come to the conclusion that they are also aliases of the primary Respondent, based on the following:
- all of the disputed domains resolve to the same website (the Complainant’s website);
- all of the disputed domain names are registered with Go D, Inc;
- all of the disputed domain names were registered on either March 12, 2008 or December 8, 2008; or
- most, if not all, of the contact details for the disputed domain names are fictitious (all information intended to be delivered to the named contacts, was undeliverable for reasons such as “incomplete address”, “wrong person” and “company or person unknown”).
The Panel notes that these circumstances also were present in relation to the 20 respondents from the Barnes & Noble case discussed above.
Accordingly, this a proper case to be decided as a single case.
The Panel will refer to all listed respondents collectively as the Respondent. 5. Factual Background
The Complainant was founded in 2000 and sells fragrances and perfumes online, through their primary business website “www.f”. Through this website the Complainant offers over 15,000 different perfumes, colognes and lotions for sale. The Complainant’s global business currently ships to more than 230 countries or locations across the world. In the first four months of 2010, the Complainant’s business took 3,000 orders which accounted for USD 11.6 million in gross revenue.
The Complainant owns United States trademark registration no. 3365121 for the standard character mark FRAGRANCEX.COM. The Complainant’s trademark was registered from January 8, 2008.
The disputed domain names were all registered on either March 12, 2008 or December 8, 2008. All of the disputed domain names resolve to the Complainant’s website, “www.f”.
No information is known about the Respondent, other than those facts mentioned in the Barnes & Noble decision referred to above. 6. Parties’ Contentions A. Complainant
The Complainant makes the following submissions and arguments:
The Complainant has been operating in the perfume and fragrance business for the past 10 years. Since conception, the Complainant has been branded “FragranceX.com”. The Complainant specializes in the distribution of perfumes, colognes and lotions that are all authentic designer brands. It has over 1 million customers and ships its products to more than 230 countries.
The disputed domain names are all confusingly similar to the Complainant’s trademark, FRAGRANCEX.COM as they are slight deviations and misspellings of “Fragrancex”. Each disputed domain name differs from the Complainant’s trademark by as little as a single keystroke. The disputed domain names are not only confusingly similar in appearance, but also in sound, connotation and the overall commercial impression which they represent. Previous panels have found that the intentional misspelling of a trademark constitutes confusing similarity for the purpose of this element (see Ruth’s Chris Steak House, Inc. v. Texas Internet,WIPO Case No. D2005-0292, Playboy Enterprises v. Movie Name Company,WIPO Case No. D2001-1201 and Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537). Furthermore, in Go Daddy Software, Inc. v. Daniel Hadani,WIPO Case No. D2002-0568 the panel found that
“Domain name registrants who, by registering domain names that differ from famous marks by only one letter, seek to take advantage of users’ typographical errors are engaging in “typosquatting”. Domain names that constitute typosquatting are “confusingly similar” by definition because the sole attraction of the domain names is their confusing similarity to famous marks”.
The Respondent has no rights or legitimate interests in respect of the disputed domain names. The Respondent has not been commonly known by this name, and has no trademark or common law rights in the name “FragranceX”. The Respondent has not used the disputed domain names for the bona fide offering of goods or services. In fact, when the disputed domain names are entered into the web browser, the user is automatically diverted to the Complainant’s website, “www.f”. A similar situation occurred in Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537, where users where diverted to the Barnes & Noble website. Previous panels have also found that “typosquatting” does not constitute a legitimate use of a trademark (E, Inc. v. Yinghun Guo, dba This domain name is 4 sale,WIPO Case No. D2006-0694 and Microsoft Corporation v. Global Net 2000 Inc.,WIPO Case No. D2000-0554).
In the Barnes & Noble case, the respondent (Oleg Techino) transferred all but one of the disputed domain names to new owners, in order to frustrate and avoid the UDRP process. Here the complainant was unsuccessful in locating these new registrants, even with the assistance of an investigator. In order to support the allegations in the current case, the Complainant contacted Barnes & Noble legal counsel to confirm whether the respondents involved were the same. The Complainant received confirmation from Barnes & Noble legal counsel that 20 of the 24 respondents were identical in name.
The latter part of the Complainant’s trading name and trademark was chosen to represent the “X Factor” in buying perfume which is low in price, includes a large selection and excellent customer service. As the Complainant is the only online perfume and fragrance reseller incorporating the word “Fragrance” with the letter “X”, it is unrealistic to conclude that the Respondent had no knowledge of the Complainant. The disputed domain names direct users to the Complainant’s website, which prominently displays the Complainant’s trademark. The Complainant asserts that this is evidence that the Respondent is trying to pass itself off as the Complainant and trade on the Complainant’s goodwill established from 10 years of use of the FRAGRANCEX.COM mark.
The Respondent has also shown a pattern of bad faith in using domain names, having previously been party to UDRP proceedings such as Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537; R.T.G Furniture Corp. v. Oleg Techino, WIPO Case No. D2006-0886 and AOL Inc. v. Argosweb Corp a/k/a Oleg Techino a/k/a Orel Hlasek, NAF Claim No. 1320505. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 7. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The onus of proving these elements is on the Complainant. A. Identical or Confusingly Similar
The Complainant is the owner of a registered trademark in the United States for FRAGRANCEX.COM. For the Complainant to succeed in this element, it must show that the disputed domain names are identical or confusingly similar to the Complainant’s trademark. Usually the suffix, “.com” can be ignored for this purpose. However, in this case as “.com” forms part of the trademark, the Panel will consider the disputed domain names inclusive of the suffix. It is becoming increasingly common, particularly for online businesses, to seek trademark protection for their entire domain name. For other “.com” trademarks see A, Inc. v. Kim Yoon-Jo, WIPO Case No. D2003-0774 (trademark for AMAZON.COM) and Advance Magazine Publishers Inc. and Les Publications Conde Nast S.A. v ChinaV,WIPO Case No. D2005-0615 (trademark for VOGUE.COM).
Each disputed domain name differs from the Complainant’s trademark by only 1 or 2 letters. It is well established that “typosquatting” can constitute confusing similarly (Deutsche Bank Aktiengesellschaft v. New York TV Tickets Inc., WIPO Case No. D2001-1314, DaimlerChrysler Corporation v. Worshipping, Chrisler, and Chr, aka Dream Media and aka Peter Conover,WIPO Case No. D2000-1272 and Playboy Enterprises v. Movie Name Company,WIPO Case No. D2001-1201). The Panel considers this to be a clear case of “typosquatting”. The majority of the disputed domain names only differ from the Complainant’s trademark by changing one letter. For example, in the disputed domain names of , and the substitution of one letter would result in the Complainant’s trademark. In another instance, the letters are swapped around, for example the disputed domain name of and .
The Panel finds that the disputed domain names are confusingly similar to a registered trademark in which the Complainant has rights.
Accordingly, the first element has been met. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name. The Complainant must make out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names.
There is no evidence that the Respondent has been commonly known by the name “FragranceX” or any of the misspellings of this name in the disputed domain names. Nor does it appear to have any trademark or common law rights in the name “FragranceX” or any of the misspellings of this name. The Respondent has not used the disputed domain names for the bona fide offering of goods or services. On the contrary, when the disputed domain names are entered into a web browser, the user is automatically diverted to the Complainant’s website, “www.f”. This has been done without the Complainant’s permission and it is likely to confuse Internet users. There is no evidence that the Respondent has an intention to use the disputed domains for a bona fide offering of goods or services in the future.
Furthermore, previous panels have found that “typosquatting” does not constitute a legitimate use of a trademark (E, Inc. v. Yingkun Guo, dba This domain is 4 sale,WIPO Case No. D2006-0694 and Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537).
The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain names and as the Respondent did not submit a response, it has not rebutted the prima facie case established by the Complainant.
Accordingly, the second element has been met. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in the disputed domain name. However, it is clear that this list is non-exhaustive.
Previous panels have found that a finding of “typosquatting” is sufficient to establish use and registration in bad faith (Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537, E, Inc. v. Yingkun Guo, dba This domain is 4 sale,WIPO Case No. D2006-0694 and Sephora v. WhoisGuard,WIPO Case No. D2006-0845). This is a clear case of typosquatting, having regard to the number of disputed domain names and the minor differences between them and the Complainant’s trademark.
The Complainant has argued that the fact that the Respondent has used fictitious aliases is evidence of an effort to try and frustrate and avoid the UDRP process (Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537). The provision of false contact details (as recognized above) has also been considered evidence of bad faith by other panels (see Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 and Ticketmaster Corporation v. Dmitri Prem,WIPO Case No. D2000-1550). The number of obviously false and misleading details provided by the Respondent in relation to the disputed domain names is clear evidence of bad faith and an attempt to avoid UDRP proceedings. It is clear to the Panel that the primary Respondent has previously been involved in cybersquatting, and has continued to engage in such conduct in bad faith.
The Complainant contented that the Respondent has also shown a pattern of bad faith in cybersquatting, having previously been party to UDRP proceedings such as Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537; R.T.G Furniture Corp. v. Oleg Techino, WIPO Case No. D2006-0886 and AOL Inc. v. Argosweb Corp a/k/a Oleg Techino a/k/a Orel Hlasek, NAF Claim No. 1320505. The Panel sees that two of these three cases mentioned involved the issue of “typosquatting”. This conduct has also been considered to be bad faith by previous panels (see MouseSavers, Inc v. Mr. Henry Tsung d/b/a ,WIPO Case No. D2004-1034)
The Complainant has argued that by redirecting the disputed domain names to the Complainant’s website, the Respondent is trying to pass itself off as the Complainant and trade on the Complainant’s goodwill established from a decade of use of its trademark. The Panel is unsure of the benefit the Respondent may be receiving from this act. However, even if the disputed domain names are not used for the Respondent’s own commercial benefit, redirecting misspelled domain names to the Complainant’s website may cause confusion or reflect badly on the Complainant and may also amount to bad faith.
There are a significant number of factors indicating bad faith in this case and the Panel finds that the disputed domain names have been registered and used in bad faith.
Accordingly, on the evidence available to it, the Panel finds that the third element has been met. 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 names , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , be transferred to the Complainant.
John Swinson
Sole Panelist
Dated: September 17, 2010
Full & Egal Universal Law Academy