The Complainant is Revlon Consumer Products Corporation of New York, New York, United States of America, represented by Steven Rosenthal and Erica Swartz, United States of America.
The Respondent is Stephen Kong of Garibaldi Highlands, British Columbia, Canada; Domain Privacy Group, Inc. of Markham, Ontario, Canada. 2. The Domain Name and Registrar
The disputed domain name is registered with Netfirms, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 30, 2010. On August 31, 2010, the Center transmitted by email to Netfirms, Inc. a request for registrar verification in connection with the disputed domain name. On September 1, 2010, Netfirms, Inc. 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 and contact information in the Complaint. The Center sent an email communication to the Complainant on September 2, 2010 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on September 2, 2010.
The Center verified that the Complaint together with the amendment to 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 the Respondent of the Complaint, and the proceedings commenced on September 3, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 23, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 24, 2010.
The Center appointed John Terry as the sole panelist in this matter on October 1, 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 is an American company established in 1932 and has used and registered trade marks characterised by REVLON, an invented and now internationally famous trademark. The use and registrations evidenced in the Complaint relate to beauty care products and related goods. The disputed domain name was registered April 2, 2010. 5.Parties’ Contentions A. Complainant
Complainant relies on its extensive promotion and sale internationally of cosmetics and related beauty care products under the trade mark REVLON, for which numerous trademark registrations have been obtained.
The disputed domain name is submitted to be confusingly similar to the Complainant’s trade mark REVLON in that it incorporates the trade mark in its entirety.
According to the certified Complaint, the disputed domain name resolved to a website which linked to third party websites for competitors of the Complainant and providing similar goods.
The Complainant submits and asserts that the registrant of the domain name has no rights or legitimate interests in respect of the domain name in dispute and the Respondent does not satisfy the requirements of paragraph 4(a)(ii) of the Policy.
The Complainant further asserted that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source of the Respondent’s website and products and services within the ambit of 4(b)(iv) of the Policy.
The Complainant requested transfer of the disputed domain name to it. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion And Findings
The Rules require the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish 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 Complainant has rights; and
(ii) 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.
Complainant must establish these elements even if Respondent does not submit a response.
As there has been no response, the Panel may also accept as true the factual allegations in the Complaint; see for example ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009). A. Identical or Confusingly Similar
The Panel finds the disputed domain name to be confusingly similar to the trade mark REVLON in which the Complainant has established prior rights as a result of its usage and trade mark registration. The only difference in the domain name in dispute is the addition of a non-distinctive word namely “cosmetics”, and the non-distinctive “.net” being a generic top-level domain designator.
The Panel concludes that the disputed domain name is confusingly similar to the registered mark of Complainant and that the requirements of paragraph 4(a)(i) of the Policy are fulfilled. B. Rights or Legitimate Interests
The Panel is satisfied that the uncontroverted Complaint is made out under paragraph 4(a)(ii) of the Policy because the Respondent has not at any time had relevant rights of legitimate interests.
Paragraph 4(c) of the Policy provides three non-limiting examples of circumstances under which a Respondent may be able to demonstrate legitimate rights or interests under paragraph 4(a)(ii). Sub-paragraph (i) of 4(c) does not apply as the Respondent has produced no evidence of use or preparations for use of the domain name with a bona fide offering of goods or services as of the date of the Complaint. Paragraph 4(c)(ii) does not apply as there is no evidence from the Respondent it had become commonly known by the domain name. Paragraph 4(c)(iii) does not apply because the Respondent has not demonstrated any legitimate noncommercial or fair use of the domain name. Thus not only does the Respondent fail to establish circumstances within any of the examples in paragraph 4(c) but also the Respondent fails generally to rebut the Complainant’s prima facie case as to evidence applicable to paragraph 4(a)(ii).
It is well settled that maintaining a website that merely contains links to other websites is not per se legitimate use or showing a bona fide offering of goods; see for example Trade Me Limited v. Vertical Axis Inc.,WIPO Case No. D2009-0093. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy set forth circumstances, which if present, shall be held to be registration and use in bad faith. Paragraph 4(b)(iv) is relevant to this case.
The Panel finds it inconceivable that the Respondent was unaware of the Complainant’s famous trademark REVLON when it registered the domain name in dispute. Such registration and any use (absent proof of rights or legitimate interests) represent bad faith registration and use; see for example DaimlerChrysler Corporation v. Web4Comm SRL RomaniaWIPO Case No. DRO2006-0003.
In Compagnie Générale des Etablissements Michelin CGEM – Michelin & Cie, Michelin Recherche et Technique S.A. v. Horoshiy Inc., WIPO Case No. D2004-0752, the Panelist stated: “the disputed domain names [were] used for ‘click-through’ revenue generating sites which provide[d] income to the Respondent by inducing Internet users to click through to sponsored links. It is the Panel’s opinion that the purpose of the Respondent’s use of the domain names containing the Complainants’ famous trademarks is merely to capture the Complainants’ customers who are seeking the Complainant’s products and/or services, and to re-direct them to other websites. Such use of domains is neither legitimate, nor of good faith. Using a domain name to intentionally attract, for commercial gain, Internet users to a website by creating confusion with a complainant’s mark is evidence of bad faith registration under the Policy, paragraph 4(b)(iv).”
In the case of Movado LLC v. Titan Net,WIPO Case No. D2006-0824, the Panelist stated the following: “The Panel accepts that it is highly likely that the Respondent is deriving click-through revenue from the website. This brings the deception within paragraph 4(b)(iv) of the Policy and constitutes evidence of both bad faith registration and bad faith use.”
The nature of the Respondent’s website with its links to competitors of the Complainant, especially in circumstances where the domain name is characterized by a famous trademark show bad faith registration and use.
Based on the evidence and unrefuted contentions of the Complainant, the Panel finds the third element of the Policy established by the Complaint. 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.
John Terry
Sole Panelist
Dated: October 15, 2010
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