Complainant is Lancôme Parfums Beauté et compagnie of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Zan Chen of Calgary, Alberta, Canada. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 4, 2015. On December 4, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 4, 2015, the Registrar transmitted by email to the Center its verification response confirming that 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on December 10, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 30, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 8, 2016.
The Center appointed Sandra A. Sellers as the sole panelist in this matter on January 20, 2016. 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 is one of the world’s largest groups in the cosmetics and beauty industry, with operations in over 130 countries. Its products are marketed under the LANCÔME trademark. It is the number one brand in the women’s selective cosmetics market. It is well known worldwide, with numerous worldwide trademark registrations.
Complainant is the owner of the domain names , , and , among others.
Respondent registered the disputed domain name, , on June 26, 2015. The disputed domain name originally reverted to a parking page containing links to other commercial sites. It now reverts to an inactive page.
On July 31, 2015, Complainant sent a cease and desist letter to Respondent requesting transfer of the disputed domain name to Complainant. In September 2015, Respondent responded, but refused to give up ownership and transfer the disputed domain name to Complainant. Respondent instead offered to keep the disputed domain name as part of his “collection” and offered to redirect it to Complainant’s official website. Complainant indicated that it needs to own the disputed domain name, and such redirection was not acceptable, since the disputed domain name would still be under Respondent’s control. Respondent indicated that he was willing to take “ICANN’s judgment on this dispute”. 5. Parties’ Contentions A. Complainant
Complainant asserts that it has rights in the LANCÔME trademark. It contends that the disputed domain name is confusingly similar to Complainant’s mark because it consists of Complainant’s LANCÔME mark in its entirety, and that the only difference between Complainant’s mark and the disputed domain name is the lack of circumflex accent over the “o” letter. Complainant further alleges that Respondent has no rights or legitimate interests in the disputed domain name, and that it registered and uses the disputed domain name in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate 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 in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
To satisfy paragraph 4(a)(i) of the Policy, complainant must show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights.
As set forth above, Complainant owns various worldwide trademark registrations for the LANCÔME mark. Many previous WIPO decisions have found that the LANCÔME mark is well known. See, e g., Lancôme Parfums et Beauté & Cie v. SL, Blancel Web,WIPO Case No. D2001-0028; Lancôme Parfums et Beauté & Cie, L’Oreal v. 10 Selling,WIPO Case No. D2008-0226; Lancôme Parfums et Beauté & Cie v. He peng, WIPO Case No. 2014-1944 (and cases cited therein.)
It is not possible to include punctuation marks (except for the hyphen) in domain names. Punctuation marks typically do not significantly affect the appearance of words. Therefore, in comparing a disputed domain name with the Complainant’s trademark, previous Panels have ignored the lack of a circumflex accent mark in the disputed domain name. Lancôme Parfums et Beauté & Cie, L’oréal v. InfoChina Ltd,WIPO Case No. D2008-0981.
Accordingly, the Panel finds that Complainant has rights in the LANCÔME mark and that the disputed domain name is confusingly similar to Complainant’s mark. Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Because it is generally difficult for a complainant to prove the fact that a respondent does not have any rights or legitimate interests in a disputed domain name, previous UDRP panels have found it sufficient for a complainant to make a prima facie showing of its assertion where there has been no response.
Complainant has exclusive rights in the LANCÔME mark and has not authorized Respondent to register and use the disputed domain name . Respondent is not affiliated with or related to Complainant, nor is Respondent licensed or authorized to use the LANCÔME mark. Respondent is not known under the LANCÔME mark. Respondent has made no showing that it has any legitimate interest in using the disputed domain name for a bona fide offering of goods or services under the mark. On the evidence before the Panel, Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name.
The Panel is satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name.
Respondent is in default, and has not provided any evidence in its own favor.
The Panel finds that the evidence in the record is sufficient to establish that Respondent has no rights or legitimate interests in the disputed domain name, and thus Complainant meets the second criterion of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that:
“for the purposes of paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location.”
It is difficult to conceive that Respondent did not know of Complainant’s mark and products when Respondent registered the disputed domain name. As set forth above, the LANCÔME mark is protected by various United States of America and international trademark registrations, and is well known worldwide. Complainant used the LANCÔME mark for its beauty products. All of this occurred before Respondent registered on June 26, 2015. Further, the disputed domain name originally reverted to commercial links. Based on these facts, this Panel infers that Respondent was aware or must have been aware of Complainant’s mark when Respondent registered the disputed domain name, and therefore registered it in bad faith. See, e.g., Jupiters Limited v. Aaron Hall,WIPO Case No. D2000-0574, in which the panel found it “inevitable that [r]espondent registered the domain names in full knowledge of [c]omplainant’s rights and interests”.
Complainant sent Respondent a cease and desist letter on July 31, 2015. Respondent therefore was made aware of Complainant’s rights in the LANCÔME mark and Complainant’s demand that it transfer the disputed domain name to Complainant. Respondent even replied to the letter, but refused to give up ownership and transfer the disputed domain name to Complainant. Respondent instead offered to keep the disputed domain name as part of his “collection” and offered to redirect it to Complainant’s official website. Complainant indicated that it needs to own the disputed domain name, and such redirection was not acceptable, since the disputed domain name would still be under Respondent’s control. Respondent indicated that he was willing to take “ICANN’s judgment on this dispute”. Clearly Respondent had actual knowledge of Complainant’s mark and demand that the disputed domain name be transferred to Complainant, but Respondent continues to use the disputed domain name.
Respondent’s domain name now reverts to an inactive web page. However, passive holding does not preclude a finding of bad faith, particularly where Respondent has no bona fide use for the disputed domain name and simply is precluding Complainant from using a domain name that corresponds to Complainant’s mark. See, e.g., Telstra Corporation v. Nuclear Marshmallows,WIPO Case No. D2000-0003. This case follows that line. This is particularly true where, as here, Respondent refused to transfer the disputed domain name but offered to hold it and redirect visitors to Complainant’s page, thus precluding Complainant from owning and using a domain name almost identical to its mark. This Panel finds that the disputed domain name is being used in bad faith.
Additionally, Respondent’s website initially resolved to commercial links, which demonstrated that Respondent intentionally attracted Internet users for commercial gain by linking to other websites through which Complainant’s competitors sell similar goods and services. This creates a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of a product or service. It has long been held that this type of click through revenue violates the Policy under paragraph 4(b)(iv). See, e.g., Express Scripts, Inc. v. Windgather Investments Ltd. / Mr. Cartwright, WIPO Case No. D2007-0267. The Panel finds that Respondent also has used the disputed domain name in bad faith under paragraph 4(b)(iv) 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 Complainant.
Sandra A. Sellers
Sole Panelist
Date: February 1, 2016
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