The Complainant is Bazarchic, France, represented by Clairmont Novus Avocats, France.
The Respondent is Super Privacy Service LTD c/o Dynadot, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with Dynadot, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 18, 2019. On June 19, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 20, 2019, 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.
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 of the Complaint, and the proceedings commenced on June 25, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 15, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 18, 2019.
The Center appointed Knud Wallberg as the sole panelist in this matter on July 24, 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 arranges for the sale of luxury items through the web site found at its domain name, , which was registered on November 16, 2005 and has been used since then.
The Complainant holds several registrations of the trademark, BAZARCHIC, including the International trademark BAZARCHIC No. 332397 registered on September 27, 2016 in classes 14, 18, 20, 21, 24, 25, 34, 35 and 38.
The disputed domain was registered on November 1, 2018. It resolves to a parking page displaying sponsored links inter alia to competitors of the Complainant. 5. Parties’ Contentions A. Complainant
The disputed domain name incorporates the Complainant’s trademark and company name in their entirety, merely deleting an “r” at the middle of the domain name.
The Complainant did not authorize the Respondent to use the BAZARCHIC trademarks, domain names or company name. The Complainant further contents, that the Respondent has no right nor legitimate interests arising from a bona fide offering of goods and services or from a legitimate noncommercial or faire use of the disputed domain name as it redirects the visitor to a parking page containing pay-per-click links some of which are links to competitors of the Complainant.
Finally, the Complainant contents that the disputed domain name was registered and is being used in bad faith. It is thus highly likely that the Respondent knew of the Complainant’s BAZARCHIC mark when it registered the disputed domain name, just as the disputed domain name is used for a website that displays sponsored links some of which relates to the Complainant’s field of activity. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 15(a) of the Rules the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that a complainant must prove each of the following:
(i) that the disputed domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) that the respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar (in the sense of the Policy) to the Complainant’s registered trademark BAZARCHIC since it incorporates the said trademark in its entirety except for the letter “r” in the middle. The generic Top-Level Domain (“gTLD”) “.com” does not dispel a finding of confusing similarity as it is disregarded under the first element confusing similarity test, see section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled in relation to the disputed domain name. B. Rights or Legitimate Interests
It is clear from the facts of the case that the Complainant has not licensed or otherwise permitted the Respondent to use its trademark.
Given the circumstances of this case, and in particular the way that the Respondent has been using the disputed domain name, the Panel finds that the Complainant has established that the Respondent has no rights or legitimate interests in the disputed domain name.
The Respondent has chosen not to participate in the proceeding, and indeed, there is no other evidence of the types of circumstances set out in paragraph 4(c) of the Policy that might give rise to rights or legitimate interests in the disputed domain name on the part of the Respondent in these proceedings.
Consequently, the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy are also fulfilled. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides an example of circumstances, which shall be evidence of registration and use in bad faith:
(i) circumstances indicating that the Respondent has registered or has 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 the Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the Respondent has 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 the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith.
Given the circumstances of the case and in particular the distinctive nature of the mark and the evidence on record of the longstanding use of the Complainant’s trademark BAZARCHIC, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant’s mark. Further, the Panel finds that the Respondent could not have been unaware of the fact that it chose a domain name, which could attract Internet users in a manner that is likely to create confusion for such users.
The Panel therefore finds that the disputed domain name was registered in bad faith.
Also, the Respondent has been and is presently using the disputed domain name actively for a standard pay-per-click page that contains links to the Complainant’s website as well as to the websites of third parties some of which appear to offer products of competitors of the Complainant. It is thus obvious to the Panel that the Respondent is using the disputed domain name in bad faith by intentionally attempting to attract, for commercial gain, web users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website.
Noting that the disputed domain name incorporates a registered trademark and that the disputed domain name is used for commercial gain and considering all the facts and evidence, the Panel therefore finds that the requirements of paragraph 4(a)(iii) and 4(b) of the Policy are also fulfilled in this case. 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.
Knud Wallberg
Sole Panelist
Date: August 7, 2019
Full & Egal Universal Law Academy