Complainant is Oriflame Cosmetics Global S.A. of Luxembourg, Luxembourg, represented by CSC Digital Brand Services AB, Sweden.
Respondent is Master Affiliate Club, Steven Chang of Cirebon, Jawa, Indonesia / Whoisguard Protected, Whoisguard, Inc. of Panama, Panama. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 9, 2014. On June 10, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 11, 2014, the Registrar 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 June 16, 2014 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 June 17, 2014.
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 June 18, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 8, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 14, 2014.
The Center appointed Kimberly Chen Nobles as the sole panelist in this matter on July 28, 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
Complainant submits to be a leading beauty company which owns multiple trademarks incorporating the word ORIFLAME across the globe, registered as early as 2002 and as late as 2012, as well as a trademark on the word NUTRISHAKE in Indonesia, registered on January 30, 2012.
Respondent registered the disputed domain name on March 26, 2013. 5. Parties' Contentions A. Complainant
Complainant contends that Respondent is using the disputed domain name to offer ORIFLAME NUTRISHAKE products for sale despite having no authorization or license from Complainant who owns trademark rights in those words. In so doing, Complainant contends that Respondent is using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to the website resolving from the disputed domain name, by creating a likelihood of confusion with Complainant's marks as to the source, sponsorship, affiliation or endorsement of the website.
Complainant contends that the disputed domain name is identical or confusingly similar to trademarks in which Complainant has rights. Complainant contends that Respondent has no rights or legitimate interests with respect to the disputed domain name. Complainant contends that Respondent registered and is using the disputed domain name in bad faith. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed, Complainant must prove each of the following:
(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 with respect of the disputed domain name; and
(iii) The disputed domain name was registered and is being used in bad faith. A. Identical or Confusingly Similar
The disputed domain name consists of three distinct parts: "nutrishake", "oriflame", and ".com". First, "nutrishake" is identical to the NUTRISHAKE trademark owned by Complainant. Second, "oriflame" is identical to the dominant part of many of Complainant's ORIFLAME marks. Third, ".com" offers no distinctiveness and is ignored for purposes of this analysis. As a whole, the combination of these parts of the disputed domain name is confusingly similar to the trademarks owned by Complainant.
The Panel concludes that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in that the disputed domain name is identical or confusingly similar to Complainant's marks. B. Rights or Legitimate Interests
Complainant has stated that it owns trademark rights in the words ORIFLAME and NUTRISHAKE and that it has provided no license of authorization to Respondent to use these marks. Further, Respondent appears to be misleading Internet users into believing that its website resolving from the disputed domain name is affiliated in some way with Complainant. The record shows no evidence of any disclaimer to the contrary. Likewise, the record does not provide any evidence of bona fide use on the part of Respondent.
The Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
In light of Respondent's use of a combination of two separate words covered by Complainant's multiple global trademark registrations, Complainant's argument is well taken that Respondent is using the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to the website resolving from the disputed domain name, by creating a likelihood of confusion with Complainant's marks as to the source, sponsorship, affiliation or endorsement of the website. Complainant's trademark rights provide sufficient notice to conclude that Respondent registered the disputed domain name in bad faith. Respondent's actions, offering ORIFLAME NUTRISHAKE products for sale despite having no authorization or license to do so establishes that Respondent has used the disputed domain name in bad faith.
Complainant has established that Respondent registered and is using the disputed domain name in bad faith, and has satisfied the requirements of paragraph 4(a)(iii) of the Policy. 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.
Kimberley Chen Nobles
Sole Panelist
Date: August 11, 2014
Full & Egal Universal Law Academy