The Complainant is Clarins of Neuilly-sur-Seine, France, represented by Tmark Conseils of France.
The Respondent is Park Kyeong Sook of GyeongSangNam-Do, Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with Ignitela, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 7, 2014. On March 10, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On March 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 March 13, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 2, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 8, 2014.
The Center appointed Lynda M. Braun as the sole panelist in this matter on April 23, 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 is a French luxury cosmetics company, which manufactures prestige skincare, makeup and fragrance products. The Complainant has been doing business in France for more than fifty years and has also marketed and sold its products in many countries throughout the world. The Complainant has registered trademarks for CLARINS (the “CLARINS Mark”) in France, Australia, the United States, Canada, South Korea and the European Union.
The Complainant registered the domain name in 1997, which resolves to its official website for international use. The Complainant also registered the domain name , which resolves to its official website for use in the United States.
The Respondent registered the Disputed Domain Name on February 19, 2014. The Disputed Domain Name resolves to the website “www.”, which is a landing page containing pay-per-click hyperlinks of sponsored advertisements in French. The links contain information about various products and services, including products sold by the Complainant’s competitors. In addition, at the bottom of the landing page of the site (annex 7 to the Complaint) it is stated in French that the Disputed Domain Name is for sale. 5. Parties’ Contentions A. Complainant
The Complainant contends that:
- The Disputed Domain Name is confusingly similar to the Mark in which the Complainant has rights; and
-The Respondent engaged in typosquatting by using the Complainant’s CLARINS Mark and omitting the letter “l”; and
- The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
- The Disputed Domain Name was registered and is being used in bad faith.
The Complainant seeks the transfer of the Disputed Domain Name from the Respondent in accordance with paragraph 4(i) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the Disputed Domain Name:
(i) That the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) That the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) That the Respondent has registered and is using the Disputed Domain Name in bad faith.
These elements are discussed below. A. Identical or Confusingly Similar
As an initial matter, the Complainant must demonstrate trademark rights in the CLARINS Mark. Second, the Complainant must prove that the Disputed Domain Name is either identical or confusingly similar to that trademark. The Panel finds that the Complainant has established rights in the CLARINS Mark based on longstanding use as well as its trademark registrations for the CLARINS Mark in many countries throughout the world.
Accordingly, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant’s CLARINS Mark.
In registering the Disputed Domain Name, the Respondent has engaged in typosquatting, a practice by which “a registrant introduces slight deviations into famous marks” for commercial gain. Marriott International, Inc. v. Seocho, NAF Claim No. 149187 (finding confusingly similar to the MARRIOTT trademark). Here, the Disputed Domain Name is virtually identical to the Complainant’s well-known CLARINS Mark – differing only in the omission of the letter “l”. Because the Respondent’s registration of the Disputed Domain Name constitutes typosquatting, the domain at issue is, by definition, confusingly similar to the Complainant’s CLARINS Mark. It has been held that typosquatting creates virtually identical and/or confusingly similar marks to a complainant’s trademark. ESPN, Inc. v. XC2,WIPO Case No. D2005-0444; Longs Drug Stores California, Inc. v. Shep Dog,WIPO Case No. D2004-1069. See also Dow Jones & Co. v. Powerclick, Inc.,WIPO Case No. D2000-1259 (holding that the deliberate introduction of errors or changes does not render the respondent’s domain name less confusingly similar to the core trademark held by the complainant.).
Finally, the addition of a generic Top-Level Domain (gTLD) such as “.net” to a domain name is technically required. Thus, it is well established that such element may typically be disregarded when assessing whether domain names are identical or confusingly similar to a trademark. Proactiva Medio Ambiente, S.A. v. Proactiva,WIPO Case No. D2012-0182.
Accordingly, the first element of paragraph 4(a) of the Policy has been met by the Complainant. B. Rights or Legitimate Interests
Under the Policy, a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name at issue. Once such a prima facie case is made, the respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions Second Edition (“WIPO Overview 2.0”), paragraph 2.1.
In this case, the Panel finds that the Complainant has made out a prima facie case. The Respondent has not submitted any arguments or evidence to rebut the Complainant’s prima facie case. The Respondent is diverting consumers who are looking for Clarins beauty products to, among other products and services, competing beauty and cosmetics-related websites. The Panel finds that this is not a legitimate, bona fide use and does not confer rights or legitimate interests in the Disputed Domain Name to the Respondent. See Lexar Media, Inc. v. Michael Huang,WIPO Case No. D2004-1039 (The respondent’s use was not bona fide where, via typosquatting, the respondent diverted consumers to his website which then linked to the websites of the complainant’s competitors).
Furthermore, the Complainant has not authorized, licensed or otherwise permitted the Respondent to use its CLARINS Mark. The name of the Respondent has no apparent connection to the Disputed Domain Name that would suggest that it is related to a trademark or trade name in which the Respondent has rights. The Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name. Rather, the Panel concludes that the Respondent is using the Disputed Domain Name for commercial gain.
Accordingly, the second element of paragraph 4(a) of the Policy has been met by the Complainant. C. Registered and Used in Bad Faith
The Policy identifies the following circumstances that, if found, are evidence of registration and use of a domain name in bad faith:
Policy, paragraph 4(b).
(i) Circumstances indicating that the Respondent has registered or has acquired the Disputed Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Disputed Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the Disputed Domain Name; or
(ii) Circumstances indicating that the Respondent has registered the Disputed 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) Circumstances indicating that the Respondent has registered the Disputed Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) Circumstances indicating that by using the Disputed Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website 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 the Respondent’s website or location or of a product on the Respondent’s website or location.
The Panel finds that based on the record, and for the reasons set forth below, the Complainant has demonstrated the existence of the Respondent’s bad faith registration and use of the Disputed Domain Name pursuant to paragraph 4(b) of the Policy.
First, a finding of bad faith may be made where a respondent knew or should have known of the registration and use of a trademark prior to registering a domain name. Façonnable SAS v. Names4sale,WIPO Case No. D2001-1365. Such is true in the present case with the Respondent’s registration of the Disputed Domain Name long after Complainant began using and registering its trademarks in the Republic of Korea and throughout the world. See Expedia, Inc. v. European Travel Network,WIPO Case No. D2000-0137 (finding bad faith where the respondent registered the domain name after the complainant established rights and publicity in the complainant’s trademarks).
Second, it is reasonable to infer from the circumstances of this case that the Respondent registered the Disputed Domain Name to disrupt the Complainant’s business and to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s CLARINS Mark. It can also be inferred that the Respondent registered and used the Disputed Domain Name for the specific purpose of trading on the name and reputation of the Complainant and its trademark. See Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “M”,WIPO Case No. D2000-0847 (“[t]he only plausible explanation for Respondent’s actions appears to be an intentional effort to trade upon the fame of Complainant’s name and mark for commercial gain” and “[t]hat purpose is a violation of the Policy, as well as U.S. Trademark Law.”). This behavior constitutes bad faith registration and use of the Disputed Domain Name under the Policy.
Third, the Complainant has submitted evidence that the Disputed Domain Name resolves to a website that contains hyperlinks to products and services, some of which compete with those of the Complainant. See NetWizards, Inc. v. Spectrum Enterprises,WIPO Case No. D2000-1768 (Respondent appears to have used the Disputed Domain Name in order to intentionally trade on the goodwill in the CLARINS Mark and to attract traffic to third party websites for commercial gain); AutoNation, Inc. v. Paul Schaefer,WIPO Case No. D2001-0289 (bad faith use and registration found where respondent used confusingly similar domain name to sell competing products).
Moreover, domain names which resolve to landing pages containing pay-per-click links and generate revenue is in the appropriate circumstances further evidence of bad faith. See St. Baldrick’s Foundation Inc. v. Web Advertising, Corp.,WIPO Case No. D2007-0707 (“Prior panel decisions have consistently recognized that the registration of domain names which are then used to operate ‘click-through’ sites, can be considered to be evidence of bad faith.”). It is reasonable to assume that the Disputed Domain Name generates revenue from the click-through referrals. Whether this revenue accrues directly to the Respondent or to the Registrar, or to both, is immaterial. See Villeroy & Boch AG v. Mario Pingerna,WIPO Case No. D2007-1912.
Fourth, the Panel has characterized this case as one of typosquatting. It has been held by various UDRP panel decisions that the practice of typosquatting is, by itself, evidence of the bad faith registration and use of a domain name. See Dow Jones & Company, Inc. and Dow Jones LP v. John Zuccarini, d/b/a Cupcake Patrol,WIPO Case No. D2001-0302 (“It is plain that Zuccarini registered and has used the two domain names solely for the purpose of trading on the global reputation of the Wall Street Journal, taking advantage of the tendency of Internet user to misspell, and attracting such users to his own sites, and thus to profit from his own sales of advertising and from links to other websites.”). See also Longs Drug Stores California, Inc. v. Shep Dog,WIPO Case No. D2004-1069; Lexar Media, Inc. v. Michael Huang,WIPO Case No. D2004-1039; Wal-Mart Stores, Inc. v. Longo,WIPO Case No. D2004-0816.
Finally, the inclusion of the statement in French on the Respondent’s landing page that the Disputed Domain is for sale indicates in this Panel’s view that the Disputed Domain Name has been registered by the Respondent for the purpose of selling it to the Complainant or one of its competitors for valuable consideration. Pursuant to paragraph 4(b)(i) of the Policy, such practice is sufficient to demonstrate registration and use of the Disputed Domain Name in bad faith.
Accordingly, the third element of paragraph 4(a) of the Policy has been met by the Complainant. 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.
Lynda M. Braun
Sole Panelist
Date: May 7, 2014
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