The Complainant is Kids Brands Group International S.a.r.l., Luxembourg, represented by CSC Digital Brand Services AB, Sweden.
The Respondent is Martine Sellenraad, Chinchilla, the Netherlands. 2. The Domain Name and Registrar
The disputed domain name is registered with Cronon AG Berlin, Niederlassung Regensburg (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on April 9, 2019. On April 9, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 16, 2019, 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. Furthermore, the Registrar indicated that the language of the registration agreement is Dutch. The Center sent an email communication to the Complainant on April 18, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint.
On April 18, 2019, the Center sent a communication to the Parties, in English and Dutch, regarding the language of the proceeding.
The Complainant filed an amended Complaint on April 22, 2019, requesting English to be the language of proceeding. The Respondent did not comment on the language of proceeding.
On April 24, 2019, the Complainant submitted further correspondence from the Respondent to the Complainant on April 23, 2019, following the submission of the Complainant’s amended Complaint.
The Center verified that the Complaint together with the amended 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 of the Complaint, and the proceedings commenced on April 30, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 20, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 22, 2019. The Center received email communications from the Respondent on May 23, and 27, 2019.
The Center appointed Benoit Van Asbroeck as the sole panelist in this matter on May 27, 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 specializing in the design, distribution, and sale of clothing and accessories.
The Complainant is the owner of multiple trademarks containing or comprising CYRILLUS across various jurisdictions. These registrations include:
- International trademark CYRILLUS with registration No. 475207, registered on March 17, 1983, in International classes 3, 24, and 25;
- European Union trademark CYRILLUS with registration No. 0509869, registered on January 27, 1999, in International classes 3, 14, 16, 18, 20, 21, 24, 25, 28, 35, 36, and 38;
- United States of America trademark CYRILLUS with registration No. 1355437, registered on August 20, 1985, in International class 25;
- Benelux figurative trademark CYRILLUS PARIS with registration No. 1014672, registered on March 30, 2017, in International classes 16, 25, and 35;
- French figurative trademark CYRILLUS PARIS with registration No. 4350530, registered on March 30, 2017, in International classes 16, 25, and 35;
- International figurative trademark CYRILLUS PARIS with registration No. 1357399, registered on April 5, 2017, in International classes 16, 25, and 35.
Additionally, the Complainant is also the registrant of the domain names and , containing the CYRILLUS trademark.
The disputed domain name was registered on February 20, 2018, well after the Complainant secured rights to the trademarks. The disputed domain name previously resolved to a website offering the disputed domain name for sale for an amount of EUR 49,500; it currently redirects to the same website with the message that the disputed domain name is no longer available for sale. 5. Parties’ Contentions A. Complainant
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are satisfied in the present case, as follows:
(a) The disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant contends that the generic Top-Level Domain (“gTLD”) “.com” does not affect the disputed domain name for the purpose of determining whether it is identical or confusingly similar.
Relying on Uniroyal Engineered Products, Inc. v. Nauga Network Services,WIPO Case No. D2000-0503, the Complainant further argues that by incorporating the Complainant’s CYRILLUS trademark in its entirety, the disputed domain name is confusingly similar to the Complainant’s trademark.
Additionally, the Complainant claims that the mere adjunction of the generic term “paris” does not negate the confusingly similarity between the disputed domain name and the Complainant’s trademark.
Finally, the Complainant refers to a previously rendered UDRP decision (see, Inter IKEA Systems B.V. v. Franklin Lavall?e / I,WIPO Case No. D2015-2042) which considers that the inclusion of a term closely related to and describing the complainant’s business activity increases the confusing similarity.
(b) The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant asserts that it has rights in CYRILLUS and that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant argues that the Respondent’s name is “Martine Sellenraad” and that it can therefore not be commonly known by the disputed domain name. Additionally, the Complainant has never authorized or licensed the Respondent to register and use the disputed domain name.
Furthermore, the Respondent does not appear to have used the disputed domain name for any legitimate noncommercial purpose; the only use of the disputed domain name is an offer to sell for an exorbitant amount. Relying on Spirig Pharma AG v. Whois privacy services, provided by DomainProtect / Alexander Zinovjev,WIPO Case No. D2014-1612, the Complainantsubmits that the Respondent should be held to possess no legitimate interests in the disputed domain name.
The Complainant further submits that the Respondent registered the disputed domain name on February 20, 2018, which is after the Complainant’s registrations of its domain names, respectively in 1996 and 2003.
(c) The disputed domain name was registered and is being used in bad faith.
The Complainant asserts that, at the time of registration of the disputed domain name, given its worldwide reputation and its presence on the Internet, the Respondent should have been aware of the existence of the Complainant’s trademarks.
Therefore, the Complainant is convinced that the Respondent has registered the disputed domain name seeking to deliberately profit from the confusion of Internet users with CYRILLUS trademark.
In addition, the Complainant alleges that the Respondent has engaged in a pattern of cybersquatting which indicates registration of the disputed domain name in bad faith.
The Complainant also contends that the disputed domain name is pointed to a third-party website where the disputed domain is offered for sale for a price well in excess of the Respondent’s out-of-pocket costs in registering the disputed domain name.
Finally, the Complainant argues that the Respondent has ignored the Complainant’s attempt to resolve this dispute outside of this administrative proceeding. Relying on Encyclopedia Britannica, Inc. v. John Zuccarini and The Cupcake Patrol a/ka Country Walk a/k/a Cupcake Party,WIPO Case No. D2000-0330, the Complainant asserts that failure to respond to a cease-and-desist letter may be considered as a factor in finding bad faith registration and use of a domain name. B. Respondent
The Respondent did not submit a formal Response. The Respondent submitted email communications on May 23 and 27, 2019. The Respondent did not make any substantive comments on the Complainant’s contentions. 6. Discussion and Findings A. Language of Proceedings
Under 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. In the present case, the language of the Registration Agreement is Dutch.
The Complainant submitted its Complaint in English and requested the language of the proceeding to be English. The Respondent has not submitted any comments in this regard, despite having been given the opportunity to do so. Taking into account the Respondent’s default and that the Complainant would be unfairly disadvantaged by being forced to translate its Complaint, the Panel concludes that, in accordance with paragraph 11(a) of the Rules, it is appropriate that the language of the proceeding is English.
Therefore, the Panel has decided to accept the Complainant’s filing in English and to issue a decision in English. B. Identical or Confusingly Similar
The Complainant is required to establish the two following elements: (1) that it has trademark rights, and, if so, (2) that the disputed domain name is identical or confusingly similar to its trademark(s).
First of all, this Panel finds that the Complainant has clearly evidenced that it has registered trademark rights in CYRILLUS.
Secondly, this Panel finds, similarly to other UDRP panels, that the addition of the gTLD “.com” to the disputed domain name is viewed as a standard registration requirement and as such is to be disregarded.
Thirdly, the disputed domain name fully incorporates the Complainant’s CYRILLUS trademark in which the Complainant has exclusive rights.
Fourthly, this Panel finds that the addition of the term “paris” does not constitute an element so as to avoid confusing similarity for purposes of the Policy. See in this regard section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), stating that where the relevant trademark is recognizable within the disputed domain name, the addition of other terms would not prevent a finding of confusing similarity.
On the basis of the foregoing findings, and according to paragraph 4(a)(i) of the Policy, this Panel finds and concludes that the disputed domain name is confusingly similar to the Complainant’s CYRILLUS trademark. C. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists circumstances, in particular but without limitation, which, if found by the Panel to be proved, demonstrate the Respondent’s rights or legitimate interests in the disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy. Paragraph 4(c) of the Policy reads:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
This Panel finds that there is no evidence that the Respondent has any rights or legitimate interests in the disputed domain name.
It is a well-established view of the UDRP panels, with which this Panel agrees, that a prima facie case advanced by the complainant is generally sufficient for the complainant to satisfy the requirements under paragraph 4(a)(ii) of the Policy, provided that the respondent does not submit any evidence to the contrary (AGUAS DE CABREIROA, S.A.U. v. Hello Domain,WIPO Case No. D2014-2087; Spigen Korea Co., Ltd., Spigen Inc. v. Domain Admin, Whois Privacy Corp.,WIPO Case No. D2016-0145; HubSpot, Inc. v. WhoisGuard Protected, WhoisGuard, Inc. / Steve Johnson,WIPO Case No. D2016-1338).
In the present case, taking into consideration the Respondent’s default, this Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, in view of the circumstances of this case, including the following factors:
- there is no evidence that the Respondent has been commonly known by the disputed domain name;
- there is no evidence that the Respondent has been licensed or authorized to use the disputed domain name by the Complainant;
- there is no evidence that legitimate noncommercial or fair use of the disputed domain name has taken place.
In fact, the evidence shows that the disputed domain name resolved to a page indicating the disputed domain name is for sale. Under the Policy, registering a domain name primarily for the purpose of selling it to a complainant or the complainant’s competitors for sums in excess of out-of-pocket costs do not serve to create any rights or legitimate interests in a disputed domain name.
For all the foregoing reasons, this Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy identifies, in particular but without limitation, four circumstances which, if found by this Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. Paragraph 4(b) of the Policy reads:
“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:
(i) circumstances indicating that you have registered or you have acquired the 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(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 web site 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.”
Each of the four circumstances in paragraph 4(b) of the Policy, if found, would be an instance of “registration and use of a domain name in bad faith”.
The disputed domain name resolved to a page indicating the disputed domain name is for sale. This indicates that the Respondent registered the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name to the Complainant or to a competitor of the Complainant in excess of the Respondent’s out-of-pocket expenses for registering and transferring the disputed domain name, which is clearly indicative of bad faith registration and use under paragraph 4(b)(i).This is further evidenced by the fact that the Respondent had directly contacted the Complainant following its submission of the amended Complaint, with the following translated message: “You are far too generous! Just like France. At the moment, another party in the world (not EUROPE) is interested in buying domain names, amongst which . I’ll think about what to do with the domain name because you want it but you haven’t made me a serious offer”.
The Panel also finds that the Respondent’s failure to reply to the Complainant’s cease-and-desist letter and to submit a Response amount to additional circumstances evidencing the Respondent’s bad faith.
Finally, with regard to the Respondent’s registration of the disputed domain name, this Panel believes bad faith may be found where the Respondent knew or should have known of the registration and use of the CYRILLUS trademark prior to registering the disputed domain name. Such is true in the present case in which the Respondent registered the disputed domain name after the Complainant obtained its trademark registrations for the CYRILLUS trademark. The Complainant’s reputation and its presence on the Internet makes it disingenuous for the Respondent to claim that he was unaware that the registration of the disputed domain name would violate the Complainant’s rights.
In light of the foregoing, this Panel finds that the disputed domain name was registered and is being used by the Respondent in bad faith under 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.
Benoit Van Asbroeck
Sole Panelist
Date: June 10, 2019
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