The Complainant is L’Oréal of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Yang Jian of Shanghai, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Shanghai Meicheng Technology Information Development Co., Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 19, 2018. On December 26, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 27, 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 9, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on January 11, 2019. The Respondent 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 January 17, 2019. In accordance with the Rules, paragraph 5, the due date for Response was February 6, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 7, 2019.
The Center appointed Douglas Clark as the sole panelist in this matter on February 14, 2019. 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 Company that specializes in cosmetics and beauty products. It is currently one of the world’s largest cosmetic groups and manages thirty-four brands that covers hair care, skin care, make up and perfumes. These cosmetics brands include MAYBELLINE, URBAN DECAY and LANCOME. The Complainant has a presence in around 150 countries including China. The Complainant currently employs 82,600 people.
The Complainant is the owner of various L'OREAL trademarks in numerous jurisdictions including Chinese Trademark Registration no. 148647 for L'OREAL registered on July 30, 1981, Chinese Trademark Registration no. 1487385 for L'OREAL registered on December 7, 2000, Chinese trademark registration for L'OREAL PARIS no. 6665726 registered on March 28, 2010.
The Complainant is also the registrant of the domain names and registered on October 24, 1997 and August 3, 2008 respectively.
The Respondent is an individual based in Shanghai, China.
The disputed domain name was registered on May 16, 2014 and currently resolves to a page that displays the Complainant’s trademark and appears to be an enquiry platform for protecting intellectual property rights and confirming the identity of authorized distributors. The website displays the Complainant’s domain name but the link is not live. A telephone number in Shanghai and the email address “…@” are displayed on the website. 5. Parties’ Contentions A. Complainant Identical or Confusingly Similar
The Complainant contends that the disputed domain name and the trademark L'OREAL are confusingly similar. The disputed domain name contains “L'Oreal” in its entirety as the distinctive part of the disputed domain name. The additional English word “legal” does not affect the similarity of the domain name with the registered trademark. No rights or legitimate Interests
The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for “L’Oréal”. It, therefore, has no rights or legitimate interests in the disputed domain name. Registered and used in bad faith
The Complainant submits that there is no doubt that before registration of the disputed domain name the Respondent knew of the Complainant’s rights in the L'OREAL trademark given its worldwide reputation and the extent to which this product has been advertised in the world, including China. The Respondent acquired the disputed domain name to disrupt the business of the Complainant by attempting to impersonate the complainant to operate some type of fraudulent operation. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of Proceedings
The Language of the Registration Agreement is in Chinese.
The Complainant requests that the language of proceedings be English on the following grounds:
1. The Complainant does not speak or write Chinese;
2. The obligation to translate all case relevant documents would be an unfair disadvantage to the Complainant;
3. The Complainant would incur additional expenses and the proceeding would be unduly delayed;
4. The disputed domain name includes Latin characters, including the Complainant’s L’OREAL trademark and the English generic term “legal”, which strongly suggest that the Respondent has knowledge of languages other than Chinese.
The Respondent did not respond to this request.
Paragraph 11(a) of the Rules provides that:
“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.”
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Chinese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of the proceedings lies with this Panel.
The Respondent did not respond to the Center’s preliminary determination. This Panel decided in Z, Inc. v. Zufu aka Huahaotrade,WIPO Case No. D2008-1191, that a Respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceedings “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint”.
As set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delays and expense. This factor leads the Panel to determine to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English. 6.2 Substantive Issues
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark 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. A. Identical or Confusingly Similar
The disputed domain name is confusingly similar to the Complainant’s trademark. The disputed domain name incorporates the Complainant’s L’OREAL mark in full with the additional generic descriptive word “legal”. The disputed domain name is therefore confusingly similar to the Complainant’s registered trademark. See section 1.8 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The first element of paragraph 4(a) of the Policy is therefore satisfied. B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests. Section 2.1 of the WIPO Overview 3.0 provides:
“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.”
The Respondent has no business or any kind of relationships (i.e. licensee, distributor) with the Complainant. Considering the absence of a response by the Respondent to the Complainant’s contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant’s trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
The second element of paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith
Based on the evidence, the Panel has no hesitation in finding that the disputed domain name was registered in bad faith and is being used in bad faith.
The Complainant is well known around the world and in China. There can be no doubt that the Respondent knew of the Complainant before the registration of the disputed domain name, particularly as the website under the disputed domain name contains a link to one of the Complainant’s websites.
The website under the disputed domain name is attempting to impersonate the Complainant for what can only be some type of fraudulent purpose. The domain name is clearly being used in an attempt to disrupt the business of the Complainant in some way.
The third part of the paragraph 4(a) of the Policy is therefore satisfied. 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.
Douglas Clark
Sole Panelist
Date: February 28, 2019
Full & Egal Universal Law Academy