The Complainant is Pierre Fabre Dermo-Cosmetique of Castre, France, represented by DeprezGuignot & Associés, France.
The Respondent is avene of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Jiangsu Bangning Science & technology Co. Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 11, 2012. On September 11, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 12, 2012, 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. On September 14, 2012, the Center transmitted an email to the parties in both Chinese and English language regarding the language of the proceedings. On September 17, 2012, the Complainant confirmed its request that English be the language of the proceedings. The Respondent did not comment on the language of the proceedings by the specified due date.
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 the Respondent of the Complaint, and the proceedings commenced on September 20, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 10, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 12, 2012.
The Center appointed Douglas Clark as the sole panelist in this matter on October 19, 2012. 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 a French company. It is the registered proprietor in France of a number of trademarks incorporating “Avene”. Most importantly, for the purposes of this case, it is the registered proprietor of Chinese trademark No. 585988 applied for on April 3, 1991 covering cosmetics and which is currently registered.
The AVENE trademark is used on cosmetic products. The origin of the name is from the town of Avène in France famous for its spring water which can treat dematological conditions.
The disputed domain name was registered on October 20, 2011. 5. Parties’ Contentions A. Complainant
The Complainant alleges that the disputed domain name is identical to or confusingly similar to the Complainant’s registered trademark. It alleges that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant alleges that the Respondent has no relationship with the Complainant or its subsidiaries, nor with the licensee of the Complainant.
The Complainant alleges the disputed domain name was registered and is being used in bad faith because the website to which the disputed domain name resolves appears to be a website of the Complainant, which uses the Complainant’s registered trademark and, the Complainant alleges, sells counterfeit products. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Language of Proceedings
The registration agreement is in Chinese. The Complainant requested that English be the language of proceedings on the basis that consideration should be given to the level of comfort of both parties and the expenses and delays that would be incurred in requiring translation of the Complaint.
The Respondent did not respond to this.
The Respondent is claiming, by its name “avene”, to be the Complainant or closely related to the Complainant. On the website to which the disputed domain name resolves, the Respondent specifically claims to be the official shopping mall of the Complainant. In the circumstances of the present case, and particularly given the merits are so strongly in favour of the Complainant, the Panel determines that the language of proceedings be English.
This is a very simple case of domain name cybersquatting that the Policy was designed to stop. The Panel accordingly will only make brief findings. A. Identical or Confusingly Similar
The disputed domain name is composed of the Complainant’s registered trademark AVENE and the generic term “shop”.
According to previous UDRP decisions, the “addition of merely generic, descriptive, or geographical wording to a trademark in a domain name would normally be insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP” (see paragraph 1.9, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)).
The disputed domain name is confusingly similar to the Complainant’s registered trademark.
The first element of the UDRP is made out. B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests in the disputed domain name. None of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can prove its rights or legitimate interests in a disputed domain name, is present in this case.
Since the Complainant has made out a prima facie case that the Respondent has not rebutted, the Panel finds that the second element of the UDRP is made out. C. Registered and Used in Bad Faith
The Panel also finds that the disputed domain name has been registered in bad faith and is being used in bad faith.
This case falls within paragraph 4(b) (iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.” 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 be transferred to the Complainant.
Douglas Clark
Sole Panelist
Dated: November 6, 2012
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