The Complainant is Thierry Mugler of Paris, France, represented by Tmark Conseils, France.
The Respondent is Yuan Xufu of Shenzhen, Guangdong, China. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 7, 2014. On February 10, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 11, 2014, 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 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 February 19, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 11, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 12, 2014.
The Center appointed Michelle Brownlee as the sole panelist in this matter on March 18, 2014. 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 owns a number of registrations for the trademark MUGLER in connection with perfume and cosmetics products in various jurisdictions throughout the world, including:
- European Community TradeMark Registration Number 5385422, registered on January 10, 2008;
- Canadian Trademark Registration Number 798722, registered on May 27, 2011;
- United States Trademark Registration Number 2723146, registered on June 10, 2003;
- International Trademark Registration Number 1086906, registered on July 4, 2011 having effect in China and Australia.
The Complainant also owns a number of registrations in various jurisdictions for the mark THIERRY MUGLER (Stylized) in connection with perfume and cosmetics products.
The Respondent registered the Domain Name on July 3, 2013. 5. Parties’ Contentions A. Complainant
The Complainant is a world leader in the field of perfumes and fashion. The Complainant launched its first THIERRY MUGLER perfume, called ANGEL, in 1992. This perfume has been promoted by celebrities and is still a best seller worldwide. The Complainant has owned the domain name since February of 2000, and uses the domain name internationally in connection with a web site that promotes its products.
The Complainant argues that the Domain Name is identical to its MUGLER trademark, that the Respondent has no rights to or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith. The Complainant submits evidence that shows that the Respondent is using the Domain Name in connection with a web site that displays sponsored links for perfumes, including the Complainant’s competitors’ products. The Complainant contends that the Respondent is using the Domain Name to divert Internet users who are seeking the Complainant’s goods to the Respondent’s web site so that the Respondent can earn click-through advertising revenue, and argues that this constitutes bad faith use of the Domain Name under the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has demonstrated that it has rights in the MUGLER trademark, and the Panel finds that the second level of the Domain Name is identical to the trademark. Accordingly, the Complainant has proved this element. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate rights to or legitimate interests in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark at issue.
The Respondent has not presented evidence that the Respondent used or made preparations to use the Domain Name in connection with a bona fide offering of goods or services, that the Respondent is commonly known by the Domain Name or that the Respondent is making a noncommercial or fair use of the Domain Name, or in any other way refuted the Complainant’s prima facie case. The Complainant has alleged that the Respondent is using the Domain Name in connection with a web site that advertises products that are competitive with the Complainant’s products, and the Respondent has not refuted those allegations. In the Panel’s view, this cannot be considered a bona fide offering of goods or services. Accordingly, the Panel finds that the Complainant has established this element of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
The Complainant has established bad faith under paragraph 4(b)(iv) of the Policy. The Complainant has alleged that the Domain Name was used in connection with a web site that used the Complainant’s trademark to attract Internet users to the site to generate click through advertising revenue by advertising products that are competitive with the Complainant’s products. The Respondent did not reply to these contentions. Under the circumstances, the Panel finds that the Respondent has registered and used the Domain Name in bad faith. 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 Domain Name be transferred to the Complainant.
Michelle Brownlee
Sole Panelist
Date: April 3, 2014
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