The Complainant is Lancôme Parfums Beauté et Cie of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Da Wei of Wuhan, Hubei, China, self-represented. 2. The Domain Name and Registrar
The disputed domain name is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the "Registrar"). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on January 23, 2018. On January 23, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 24, 2018, 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 January 24, 2018, the Respondent submitted an informal communication in Chinese by email.
On January 26, 2018, the Center sent an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on January 30, 2018. The Respondent sent five emails in Chinese on January 26, 2018 and January 31, 2018, but did not comment on the language of the proceeding.
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 the Respondent in English and Chinese of the Complaint, and the proceedings commenced on February 2, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 22, 2018. The Respondent did not submit any formal response. Accordingly, on February 23, 2018, the Center informed the Parties of the commencement of the panel appointment process.
The Center appointed Sok Ling MOI as the sole panelist in this matter on March 5, 2018. 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, a subsidiary of French beauty and cosmetic company L'Oréal, owns the Lancôme brand. Created in 1935, the Lancôme brand has become well-known around the world for its perfumes, cosmetics and skincare products for women. The Complainant's Lancôme products are available for sale in 130 countries worldwide including China.
The Complainant and its affiliates own and operate websites at the following domain names to market its Lancôme products:
- (created on July 8, 1997)
- (created on April 15, 2003)
The Complainant owns the following trade mark registrations for LANCÔME:
Jurisdiction
Trade Mark
Class
Registration No.
Registration Date
International
LANCÔME
3, 21
164395
October 6, 1952
China
LANCÔME
3
76096
October 7, 1977
China
LANCÔME
42
775926
January 14, 1995
The disputed domain name was registered on June 14, 2016. According to the evidence submitted by the Complainant, the disputed domain name resolves to a webpage with several links offering video downloads. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is identical and/or confusingly similar to its LANCÔME trade mark. The Complainant further contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.
The Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply formally to the Complainant's contentions.
Notwithstanding, the Panel noted the 6 emails in Chinese sent by the Respondent to the Center on January 24, 2018, January 26, 2018 and January 31, 2018. In these emails, the Respondent claimed that he has registered the disputed domain name for use as a noncommercial blog-site, touching on sports, travel issues etc which has no relation to the beauty industry which the Complainant is in. The Respondent claimed that the disputed domain name is derived from randomly combining his son's Chinese name (transliterated to "lan") with the English word "come". 6. Discussion and Findings 6.1 Language of the Proceeding
Pursuant to paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
Paragraphs 10(b) and (c) of the Rules require the Panel to ensure that the proceeding takes place with due expedition and that the Parties are treated equitably and given a fair opportunity to present their respective cases.
The language of the Registration Agreement for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and requested that English be the language of the proceeding. The Respondent did not comment on the language issue.
The Panel finds persuasive evidence in the present proceeding to suggest that the Respondent has sufficient knowledge of English. In particular, the Panel notes that:
(a) the disputed domain name is registered in Latin characters, rather than Chinese script;
(b) according to the evidence submitted by the Complainant, the Respondent has replied via email of December 11, 2016 to the Complainant's cease-and-desist letter drafted in English sent via email on December 9, 2016; and
(c) based on a reverse WhoIs search independently conducted by the Panel, the Respondent has registered numerous other domain names comprising Latin characters.
Additionally, the Panel notes that:
(a) the Center has notified the Respondent of the proceeding in both Chinese and English;
(b) the Respondent has been given the opportunity to present his case in this proceeding but has chosen not to reply formally to the Complainant's contentions; and
(c) the Center has informed the Respondent that it would accept a Response in either English or Chinese.
Considering the above circumstances, the Panel finds that the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case.
The Panel has taken into consideration the fact that to require the Complaint and all supporting documents to be translated into Chinese would, in the circumstances of this case, cause an unnecessary cost burden to the Complainant and would unnecessarily delay the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that it shall accept the Complaint and all supporting materials as filed in English, that English shall be the language of the proceeding, and that the decision will be rendered in English. Notwithstanding the aforementioned, the Panel will accept the 6 emails in Chinese sent by the Respondent. 6.2 Substantive Issues
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following three elements to obtain an order for the disputed domain name to be cancelled or transferred:
(i) the disputed domain name is identical or confusingly similar to a trade mark or service mark in which the complainant has rights;
(ii) the 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.
On the basis of the available record, the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights in LANCÔME by virtue of its use and registration of the same as a trade mark.
The disputed domain name effectively incorporates the Complainant's LANCÔME trade mark in its entirety, absent the circumflex accent on the letter "o". The addition of the generic Top-Level Domain ".store" does not in this instance impact the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant's trade mark.
Consequently, the Panel finds that the disputed domain name is virtually identical to the Complainant's trade mark LANCÔME.
Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, a complainant bears the burden of establishing that the respondent lacks rights or legitimate interests in the disputed domain name. However, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, the burden of production shifts to the respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:
(i) before any notice to it of the dispute, the respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the disputed domain name, even if it has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
(See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao Internet foshan co, ltd,WIPO Case No. D2013-0974.)
The Complainant has confirmed that the Respondent is not in any way affiliated with the Complainant or otherwise authorized or licensed to use the LANCÔME trade mark or to seek registration of any domain name incorporating the LANCÔME trade mark. The Respondent appears to be an individual by the name of Da Wei. There is no evidence suggesting that the Respondent is commonly known by the disputed domain name or that the Respondent has any rights in the term "lancôme" or "lancome".
According to the evidence submitted by the Complainant, the disputed domain name resolves to a website with several links offering video downloads, rather than a blog-site touching on sports and stocks as the Respondent had claimed. The consensus view of previous UDRP panels is that use of a domain name to post parking and landing pages or pay-per-click links may be permissible in some circumstances, but would not of itself confer rights or legitimate interests arising from a "bona fide offering of goods or services" or from "legitimate noncommercial or fair use" of the domain name.
The Panel is satisfied that the Complainant has made out a prima facie case showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production thus shifts to the Respondent to establish his rights or legitimate interests in the disputed domain name. Since the Respondent did not file a formal response to the Complaint or submit any evidence to support his blog-site claim, and has thus failed to offer a valid explanation for his registration of the disputed domain name, the prima facie case has not been rebutted.
Consequently, the Panel finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the
registration and use of a disputed domain name in bad faith, namely:
(i) circumstances indicating that the respondent has registered or acquired the disputed 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 trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the respondent has registered the disputed domain name in order to prevent the owner of the trade mark 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 disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) 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 online 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 or service on the respondent's website or location.
The Panel accepts that the Complainant's trade mark LANCÔME is well-known internationally and has an obvious online presence, and so it is impossible for the Respondent to be unaware of the existence of the Complainant and its trade mark at the time of registering the disputed domain name. The Panel finds that the Respondent's explanation for the choice of the disputed domain name is not in the least convincing. Registration of a domain name that incorporates a complainant's well-known trade mark suggests opportunistic bad faith.
In registering a disputed domain name that is almost identical to the Complainant's trade mark and domain names and , the Respondent may be seeking to use them to offer sponsored links or redirect Internet users to websites offering other goods and services. In so doing, the Respondent will be depriving the Complainant of the opportunity to sell its goods and services to prospective clients who are clearly looking for the Complainant. An inference can therefore be drawn that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant's mark as to source, sponsorship, affiliation, or endorsement of the Respondent's website. As such, the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy may be applicable to the present case.
According to the evidence submitted by the Complainant, the disputed domain name resolves to a website with several links offering video downloads, rather than a blog-site touching on sports and stocks as the Respondent had claimed. In the Panel's opinion, such links clearly seek to benefit from the trade mark value of the Complainant's LANCÔME trade mark resulting in misleading diversion and disruption of the Complainant's business. Such use of the disputed domain name cannot be in good faith.
Furthermore, efforts to send written notice of the proceedings to the Respondent at the facsimile number and physical address provided by the Respondent to the Registrar (and in turn to the Center) failed, which suggests that the Respondent had probably provided false contact details.
In view of the above finding that the Respondent does not have rights or legitimate interests in the disputed domain name, and taking into account all the circumstances, the Panel concludes that the Respondent has registered and used the disputed domain name in bad faith.
Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) 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.
Sok Ling MOI
Sole Panelist
Date: March 22, 2018
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