The Complainant is La Redoute SAS of Roubaix, France, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Yu Ke Rong of Zhongshan, Guangdong, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on January 29, 2018. On January 30, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 31, 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 February 1, 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 and submitted an amended Complaint on February 3, 2018. The Respondent did not comment on the language of the proceeding by the specified due date.
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 12, 2018. In accordance with the Rules, paragraph 5, the due date for Response was March 4, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 5, 2018.
The Center appointed Sok Ling MOI as the sole panelist in this matter on March 9, 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
Founded in 1837, the Complainant is one of the leading retail mail order companies in France, offering men’s, women’s and children’s clothing, accessories, bags, shoes, bedroom and bathroom linens, window coverings and furnitures. It produced its first mail order catalogue in 1928. It has a worldwide presence and currently offers delivery of its products to customers in more than 150 countries, including China.
The Complainant owns trade mark registrations for LA REDOUTE in various jurisdictions, including the following:
Jurisdiction
Mark
Registration No.
Class No.
Registration Date
European Union
LA REDOUTE
000659151
1-42
August 16, 1999
France
LA REDOUTE
1402362
1-34
April 6, 1987
United States of America
LA REDOUTE
1389593
3, 5, 7, 9, 14, 16, 18, 20, 24, 25, 27, 28, 42
April 15, 1986
Singapore
LA REDOUTE
T8406551J
16
December 28, 1984
China
LA REDOUTE
269913
25
November 20, 1986
China
LA REDOUTE
270949
16
November 30, 1986
The Complainant also owns the following domain names which it uses to link to its e-commerce websites:
-
-
The disputed domain name was registered on May 24, 2017, long after the Complainant had used and registered its trade mark LA REDOUTE. According to the evidence submitted by the Complainant, the disputed domain name resolves to a parking webpage featuring several links to third party websites. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to its trade mark LA REDOUTE, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name has been registered and is being used in bad faith. The Complainant requests for the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 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 has requested that English be the language of the proceeding. The Respondent did not respond on the issue of the language of the proceeding.
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 website to which the disputed domain name resolves contains contents in English; and
(c) the Respondent responded in English on December 21, 2017 to the Complainant’s cease-and-desist letter dated June 13, 2017 drafted in English.
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 its case in this proceeding; and
(b) 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 re-filed in 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. 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 arguments and evidence introduced by the Complainant, the Panel concludes as follows: A. Identical or Confusingly Similar
The Panel accepts that the Complainant has rights in LA REDOUTE by virtue of its use and registration of the same as a trade mark.
The disputed domain name incorporates the Complainant’s trade mark LA REDOUTE in its entirety. The removal of the space between “la” and “redoute” does not reduce the confusing similarity between the disputed domain name and the Complainant’s trade mark. The addition of the generic Top-Level Domain (“gTLD”) “.website” does not in this case 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 identical to the Complainant’s trade mark.
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 proof to establish 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 come forward with evidence in support of its rights or legitimate interests in the disputed domain name. The respondent may establish its rights 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 LA REDOUTE trade mark or to seek registration of any domain name incorporating the trade mark. The Respondent appears to be an individual by the name of “Yu Ke Rong”. There is no evidence suggesting that the Respondent is commonly known by the disputed domain name or has acquired any trade mark rights in the term “La Redoute” or “laredoute”.
According to the evidence submitted by the Complainant, the disputed domain name resolves to a parking webpage featuring several links to third party websites related to business finance, pediatrics and make-up & cosmetics, to name a few. Presumably, the Respondent receives pay-per-click fees from the linked websites. 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 come forward with evidence of its rights or legitimate interests in the disputed domain name. Since the Respondent has failed to respond, 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 the 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 LA REDOUTE trade mark enjoys a significant reputation in France. The Complainant has claimed that its trade mark LA REDOUTE is known internationally and has a strong online presence. In this day and age of the Internet and advancement in information technology, the reputation of brands and trade marks transcends national borders. A cursory Internet search would have disclosed the LA REDOUTE trade mark and its extensive use by the Complainant. As such, a presumption arises that the Respondent was aware of the Complainant and its trade mark when it registered the disputed domain name. Registration of a domain name that incorporates a complainant’s long-established trade mark suggests opportunistic bad faith.
In this connection, the Panel notes that as indicated in the Complaint, the Respondent holds registration for other domain names that incorporate well-known third party trade marks, such as , , and . This demonstrates a pattern of cybersquatting by the Respondent. The Panel determines that the Respondent has registered the disputed domain name in order to prevent the Complainant from reflecting its trade mark in a corresponding domain name. The Panel therefore finds that the circumstances referred to in paragraph 4(b)(ii) of the Policy are applicable to the present case.
The Panel notes that there is an offer to sell the disputed domain name on the webpage. Additionally, in response to the Complainant’s cease-and-desist letter, the Respondent had written to the Complainant with an offer to sell the disputed domain name for USD 500, an amount in excess of the Respondent’s out-of-pocket costs directly related to the registration and maintenance of the disputed domain name. The Panel therefore finds that the circumstances referred to in paragraph 4(b)(i) of the Policy are applicable to the present case.
According to the evidence submitted by the Complainant, the disputed domain name resolves to a parking webpage featuring several links to third party websites related to business finance, pediatrics and make-up & cosmetics, to name a few. The consensus view of previous UDRP panels is that a domain name registrant is normally deemed responsible for content appearing on a website at its domain name, even if such registrant may not be exercising direct control over such content - for example, in the case of advertising links appearing on an “automatically” generated basis. The Panel notes the presumption that the Respondent or a third party stands to profit or make a “commercial gain” from advertising revenue by such an arrangement trading on third-party trade marks. In the Panel’s opinion, such links clearly seek to capitalize on the trade mark value of the Complainant’s LA REDOUTE trade mark resulting in misleading diversion.
The Panel determines that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 is satisfied that the Respondent is using the disputed domain name for mala fide purposes and illegitimate financial gain, and the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case.
Furthermore, efforts to send the Written Notice to the Respondent at the physical address provided by the Respondent to the Registrar (and in turn to the Center) failed which suggests that the Respondent had provided false contact details.
The Respondent has not filed a response to deny the Complainant’s allegations of bad faith. In view of the Panel’s above finding that the Respondent lacks 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: April 2, 2018
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