The Complainant is Nicolas Ghesquiere, France, represented by Cabinet Bouchara, France.
The Respondent is THIS DOMAIN MAY BE FOR SALE AT HTTPS://WWW.NETWORKSOLUTIONS.COM, New Ventures Services, Corp, United States of America. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 3, 2019. On December 4, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On December 4, 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 January 13, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 2, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 3, 2020. The Center appointed John Swinson as the sole panelist in this matter on February 13, 2020. 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 Nicolas Ghesquiere, an individual of France. The Complainant is a fashion designer in the field of ready-to-wear goods for women and fashion accessories. According to the Complainant, the Complainant has enjoyed a high reputation in the fashion industry since 1997. The Complainant has won various awards in fashion, has been named by the Times magazine as one of the 100 most influential people in the world, and has held senior positions in notable brands Balenciaga and Louis Vuitton. The Complainant is the president of NG Brand, which owns a number of registered trade marks for NICOLAS GHESQUIÈRE, including European Union Trade Mark registration number 017969592, registered on March 21, 2019. According to the Complainant, the Complainant has used his name NICOLAS GHESQUIERE as a trade mark-like identifier in trade for a very long time, as an indication of the commercial origin of clothes and accessories. The Respondent is New Ventures Services, Corp, United States of America. No response was received from the Respondent, so little is known about the Respondent. Based on this Panel’s limited research, it appears that the Respondent is a domainer. The Disputed Domain Name was registered on February 22, 2016. The Disputed Domain Name resolves to a parking page indicating that the domain may be for sale and containing pay-per-click (“PPC”) links. At the date of this decision, the PPC links appear to relate predominantly to persons or companies whose name includes “Nicolas” and “Balenciaga”. 5. Parties’ Contentions A. Complainant The Complainant makes the following submissions: Identical or Confusingly Similar The Complainant enjoys a high reputation in the fashion industry since 1997, as he was designated to head the renowned fashion house Balenciaga. The Complainant was named avant-garde designer of the year in 2000, and Womenswear designer of the year in 2001. In 2006, the Times magazine named the Complainant one of the 100 most influential people in the world. In 2013, the Complainant left Balenciaga and was named as the new artistic director of women’s collections at Louis Vuitton, which was widely reported in the press. Between 1998 and 2016, when the Disputed Domain Name was registered, the Complainant appeared regularly in the French and international press. The Complainant participated in the well-known French television show “Le Supplement” on January 24, 2016, a few days before the Disputed Domain Name was registered. The Complainant is the president of NG Brand, which owns various registered trade marks for NICOLAS GHESQUIERE. While the trade marks were not registered in 2016, the name NICOLAS GHESQUIERE was used as a trade mark like identifier since well prior to 2016 as an indication of the commercial origin of clothes and accessories. The name has become highly distinctive of these goods. The name NICOLAS GHESQUIERE has become a common law trade mark. The Disputed Domain Name reproduces the Complainant’s name almost identically, the only difference being the addition of the letter “u” between the “h” and the “e” in GHESQUIERE. The Complainant’s name remains readily recognizable and distinctive within the Disputed Domain Name, and therefore the Disputed Domain Name infringes on the Complainant’s common law trade mark rights. Rights or Legitimate Interests The Respondent has no legitimate interests in the Disputed Domain Name, because it corresponds to the Complainant’s name, which is being used commercially as a trade mark. The Respondent did not request or obtain any authorization from the Complainant to use the Complainant’s name in the Disputed Domain Name. The Disputed Domain Name has been used continuously as a parking page containing a number of sponsored links for clothes and accessories, which is the same industry in which the Complainant operates. The Disputed Domain Name is currently offered for sale. Registered and Used in Bad Faith By acquiring the Disputed Domain Name, the Respondent could not have ignored that it was imitating the name of the Complainant, who was well known worldwide and had been using his personal name as a trade mark for many years. The widespread reputation of the Complainant and the international renown of the Complainant’s name in the field of fashion is indisputable. The Disputed Domain Name was registered just one month after the Complainant’s first television interview. The Disputed Domain Name was originally registered by Abdel Hafid Fedaouche, who also registered other domain names comprising the Complainant’s name and filed a French trade mark for the Complainant’s last name, so the registration was undoubtedly in bad faith. The Disputed Domain Name was then transferred multiple times, until it was acquired by the Respondent. The Disputed Domain Name was used as a parking page containing sponsored links for clothes and accessories, including links to clothing and bags from “Balenciaga”. This cannot be a coincidence, especially because these links do not redirect to “Balenciaga” brand products. The same type of use appears to be being made as at the date of filing the Complaint. The Respondent is also offering the Disputed Domain Name for sale. There is no doubt the Disputed Domain Name was registered and used in bad faith by the Respondent to profit from the notoriety of the Complainant’s name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely: (i) the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and (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. The onus of proving these elements is on the Complainant even though the Respondent failed to submit a response. A. Procedural Issues – Response The Respondent’s failure to file a response does not automatically result in a decision in favor of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyProtect.org,WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent’s lack of a response. B. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights. According to the Complainant, the Complainant is the president of NG Brand, which is the owner of numerous trade marks for NICOLAS GHESQUIERE. Personal names that have been registered as trade marks provide standing for a complainant to file a UDRP case (see section 1.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). However, NG Brand is not the complainant in this proceeding, and therefore the Panel does not focus on these registered trade mark rights in the Panel’s decision. While the Policy does not explicitly provide standing for personal names which are not registered or otherwise protected as trade marks, where a personal name is being used as a trade mark-like identifier in trade or commerce, a complainant may be able to establish unregistered or common law rights in that name for purposes of standing to file a UDRP case where the name in question is used in commerce as a distinctive identifier of the complainant’s goods or services (see section 1.5 of WIPO Overview 3.0). Merely having a famous name is not sufficient. In this case, the Complainant has provided significant evidence of his rights in NICOLAS GHESQUIERE as a trade mark in respect of clothing and accessories. The Panel finds that the Complainant has developed sufficient goodwill in his name NICOLAS GHESQUIERE (the “Trade Mark”) to give rise to common law trade mark rights (see Julia Fiona Roberts v. Russell Boyd,WIPO Case No. D2000-0210; and David Michael Bautista, Jr. v. Quantec LLC / Whois Privacy Services Pty Ltd / Lisa Katz, Domain Protection LLC,WIPO Case No. D2016-0397). The only difference between the Disputed Domain Name and the Trade Mark is the addition of the letter “u” between the “h” and the “e” in the Complainant’s last name. Where a domain name incorporates the entirety of a trade mark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark (see section 1.7 of WIPO Overview 3.0). The Disputed Domain Name is confusingly similar to the Trade Mark. The Complainant succeeds on the first element of the Policy. C. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests in the Disputed Domain Name. The Panel considers the Complainant has made out a prima facie case. This finding is based on the following: - The Respondent is not using (and there is no evidence that the Respondent has demonstrable preparations to use) the Disputed Domain Name in connection with a bona fide offering of goods or services. The Disputed Domain Name resolves to a parking page which states that the Disputed Domain Name may be for sale, and contains PPC links. The Complainant has provided evidence that these PPC links have related to the Complainant’s field of activity in the past. In the circumstances, such use is not bona fide. - The Complainant has not authorised the Respondent to use the Trade Mark in the Disputed Domain Name. - There is no evidence that the Respondent has been commonly known by the Disputed Domain Name or has registered or common law trade mark rights in relation to this name. - The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. It is likely that the Respondent is profiting from the PPC advertising on the website at the Disputed Domain Name, and the Respondent is also inviting offers to purchase the Disputed Domain Name. The Respondent had the opportunity to demonstrate its rights or legitimate interests but failed to do so. As such, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy. D. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The Complainant has provided substantial evidence of his reputation. On the undisputed evidence before the Panel, the Complainant has been a prominent figure in the fashion industry since at least 1997. The Complainant has received significant media attention. The Panel considers that the Complainant has developed a significant reputation in the Trade Mark and that it is widely known. UDRP panels have consistently found that the mere registration of a domain name that is identical or confusingly similar to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith (see section 3.1.4 of WIPO Overview 3.0). The Panel also considers that NICOLAS GHESQUIERE is clearly not on obvious choice for a domain name – indeed it is highly specific. Based on the evidence provided by the Complainant (including the timing of the acquisition of the Disputed Domain Name only one month after the Complainant’s television appearance), the Panel infers that the Respondent knew, or at least should have known, that its registration of the Disputed Domain Name would be identical or similar to the Trade Mark (see section 3.2.2 of WIPO Overview 3.0). As it appears that the Respondent is a domainer, the Respondent also had an affirmative obligation to avoid the registration of trade mark-abusive domain names (see section 3.2.3 of WIPO Overview 3.0). The following additional factors also support a finding of bad faith registration and use: - The Disputed Domain Name is almost identical to the Trade Mark (which is highly specific), with only one additional letter. - The Disputed Domain Name is offered for sale on the website at the Disputed Domain Name, and the Respondent has included “THIS DOMAIN MAY BE FOR SALE AT HTTPS://WWW.NETWORKSOLUTIONS.COM” as the registrant contact name. - The Respondent lacks rights and legitimate interests (for the reasons identified above) and there is no credible explanation for the Respondent’s choice of the highly specific Disputed Domain Name (see section 3.2.1 of WIPO Overview 3.0). - The Complainant has provided evidence that the Respondent has used the Disputed Domain Name for PPC advertising. As discussed above, in relation to the second element of the Policy, the links on the parking page at some stage have related to clothing and accessories. The Panel considers that these links either compete with, or capitalise on, the reputation and goodwill of the Complainant’s brand. The Respondent cannot disclaim responsibility for these links, even if the Respondent did not directly profit from them (see section 3.5 of WIPO Overview 3.0; and Owens Corning v. NA,WIPO Case No. D2007-1143). - The Respondent has been involved in numerous proceedings under the Policy, where the UDRP panels have found bad faith on the part of the Respondent, and the outcome of the proceeding was a transfer to the complainant (see, for example, Dr. Rebecca Parsons, ThoughtWorks, Inc. v. Perfect Privacy, LLC / This Domain May be for Sale at https://www.networksolutions.com, New Ventures Services, Corp,WIPO Case No. D2019-0866; SGII, Inc. v. New Ventures Services, Corp,WIPO Case No. D2019-2748; and Ashok Leyland Limited v. New Ventures Services Corp,WIPO Case No. D2015-0762). In the circumstances, it is reasonable for the Panel to conclude that the Respondent is intentionally attempting to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Trade Marks as to the source of the website. This is an indicator of bad faith under paragraph 4(b)(iv) of the Policy. The Panel considers it more likely than not that the Respondent registered and is using the Disputed Domain Name in bad faith. The Complainant succeeds in establishing the third element 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, John Swinson
Sole Panelist
Date: February 27, 2020
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