The Complainant is Jeunesse Global Holdings, LLC, United States of America (“United States” or “US”), represented by BMVN International LLC, Viet Nam.
The Respondent is Ong Nguyen Luu Tri, Viet Nam. 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 26, 2019. On December 26, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On January 2, 2020, 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 Registrar also indicated that the language of the Registration Agreement was Vietnamese. The Center sent an email communication to the Complainant and the Respondent on January 2, 2020, in both English and Vietnamese, inviting the Complainant to provide sufficient evidence of an agreement between the Parties for English to be the language of proceeding, or a Complaint translated into Vietnamese, or a request for English to be the language of proceeding. Similarly, the Respondent was invited to submit eithers its agreement that English be the language of the proceedings or its arguments for the language of the proceedings to be Vietnamese. The Complainant filed a request for English to be the language of proceeding on January 3, 2020. No comments were received from the Respondent. 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 in both English and Vietnamese, and the proceedings commenced in dual language on January 8, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 28, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 29, 2020. The Center appointed Pham Nghiem Xuan Bac as the sole panelist in this matter on February 3, 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, Jeunesse Global Holdings, LLC, is a US-based company founded in 2009, which directly sells skincare and nutritional products in over 145 countries. The Complainant is the registered owner of numerous trademark registrations for the JEUNESSE trademark in many countries over the world, in relation to cosmetics and nutrition related products/services in Classes 03, 05, 32, 35, and 44 with the earliest registration obtained in the United States in 2012 (Reg. No. 4181745). The JEUNESSE trademark has also been protected in Viet Nam, where the Respondent resides. The Respondent registered the Disputed Domain Name 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: (i) The Disputed Domain Name is confusingly similar to the trademark in which the Complainant has rights. First, the Complainant contends that the Complainant is the registered owner of trademark registrations for JEUNESSE in numerous jurisdictions, including, but not limited to Viet Nam. Second, the Complainant asserts that the Disputed Domain Name is confusingly similar to JEUNESSE Trademarks owned by the Complainant since the Disputed Domain Name merely employs the element JEUNESSE as the only dominant element, and the addition of the geographic identifier “vn”, which is the common abbreviation of “Viet Nam”, could not dispel any likelihood of confusion. Further, the Complainant submits that the addition of the generic Top-Level Domain (“gTLD”) suffix “.com” in the Disputed Domain Name does not add any distinctiveness to the Disputed Domain Name. Finally, the Complainant submits that on November 14, 2019, the Vietnam Intellectual Property Research Institute (“VIPRI”), a subordinate agency of the Ministry of Science and Technology of the Vietnamese Government, issued the Conclusion of Assessment No. NH709-19YC/KLGD, in which the VIPRI concludes that the sign JEUNESSE (and design) as shown on the website under the Disputed Domain Name is confusingly similar to the Complainant’s JEUNESSE trademark under Registration No. 281272 in Vietnam. (ii) The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant submits that the elements set forth in Policy, paragraph 4(c) are not fulfilled. First, the Complainant contends that the Respondent registered the Disputed Domain Name after the Complainant had established rights in the JEUNESSE trademark. Second, the Complainant contends that the Respondent gave a number of false references to Complainant, particularly the Respondent’s use of the Complainant’s image of JEUNESSE trademark on the top banner of the Website, the display of a wide range of the Complainant’s products, and an advertising video of the Complainant on the Website. In addition, the Website also provides the information about its holding company, which is “Jeunesse VN”, and a copyright claim at the bottom of the Website stating “[c]opyrights belong to Jeunesse Global Vietnam”. These references may mislead customers into believing that the owner of the website is a local agent or affiliate of the Complainant. Third, the Complainant has not licensed or otherwise permitted the Respondent to use any of its trademarks or to register a domain name incorporating its JEUNESSE trademark (or a domain name which will be associated with this trademark). Moreover, the Complainant contends that the Respondent has been using the Disputed Domain Name for commercial gain by attempting to decisively entice consumers into buying products through the Respondent as if the Respondent and its products/services are linked or associated with the Complainant. Finally, the Complainant argues that given the strong reputation of the Complainant’s JEUNESSE trademark, the Respondent did not register the Disputed Domain Name for any legitimate or fair-use purpose, but to appropriate the fame and reputation of the Complainant and the JEUNESSE trademark for the Respondent’s own profit. (iii) The Disputed Domain Name was registered and is being used in bad faith. The Complainant asserts that the Respondent’s bad faith in the registration and use of the Disputed Domain Name is established by the fact that the Disputed Domain Name wholly and purposefully incorporates the Complainant’s JEUNESSE Trademarks, and was registered by the Respondent after the Complainant’s JEUNESSE Trademarks became widely known to consumers and the relevant trade. Secondly, the Respondent has been using the Disputed Domain Name in connection with a website that seeks to misleadingly entice consumers to buy products through the Respondent as if the Respondent is an agency of the Complainant in Viet Nam, when it has never been the case. After seeing the JEUNESSE trademark as a prominent constituent element of the Disputed Domain Name, consumers will initially be confused as to the Disputed Domain Name’s association with or sponsorship by the Complainant. With the said arguments, the Complainant requests that the Disputed Domain Name The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Procedural Issues (i) Language of the Proceeding The Complaint was filed in English. However, the Registrar confirmed that the language of the Registration Agreement was Vietnamese. As the Complaint was filed in English, the Center, in its notification dated January 02, 2020, invited the Complainant to submit either (i) satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceeding should be in English, or (ii) submit the Complaint translated into Vietnamese, or (ii) a substantiated request for English to be the language of the proceeding. On January 03, 2020, the Complainant submitted a request that English be the language of the proceeding. According to paragraph 11(a) of the Rules, unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the 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. Similar to previous UDRP decisions, the Panel finds that the spirit of paragraph 11(a) is to ensure fairness in the selection of language by giving full consideration to the Parties’ level of comfortability with each language, the expenses to be incurred, and possibility of delay in the proceeding in the event translations are required and other relevant factors (see, e.g., Deutsche Messe AG v. Kim Hyungho,WIPO Case No. D2003-0679). In the present case, the Panel takes into account the circumstances of the proceeding, including, but not limited to: (i) the fact that the Complainant, an American business entity, does not appear to be able to communicate in Vietnamese, and therefore, if the Complainant was required to have the documents translated into Vietnamese, the proceeding would be unduly delayed, and the Complainant would have to incur substantial expenses for translation; (ii) the English language is quite popular in Viet Nam, where the Respondent is located, and the website under the Disputed Domain Name contains English contents; these suggest that the Respondent has ample knowledge of the English language and be able to communicate quite well in English; (iii) the Respondent did not object for English to be the language of the proceeding and did not submit a response in neither English nor Vietnamese. Therefore, for the purpose of easy comprehension of the Complainant (the party majorly taking part in the proceeding) of the Panel’s decision without any necessity of translations, and in the interest of fairness to both Parties as well as the Panel’s obligation under paragraph 10(c) of the Rules, which provides that “the Panel shall ensure that the administrative proceeding takes place with due expedition”, the Panel hereby decides, under paragraph 11(a) of the Rules, that the language of the proceeding shall be English and shall render its decision in English. (ii) The Respondent’s Failure to Respond The Respondent’s failure to file a Response does not automatically result in a decision in favor of the Complainant (see, e.g., Tradewind Media, LLC d/b/a Intopic Media v. Jayson Hahn,WIPO Case No. D2010-1413 and M. Corentin Benoit Thiercelin v. CyberDeal, Inc.,WIPO Case No. D2010-0941). However, the Panel may draw appropriate inferences from the Respondent’s default. B. Identical or Confusingly Similar The Complainant is required to establish the following: (i) that it has trademark rights, and, if so, (ii) that the Disputed Domain Name is identical or confusingly similar to its trademark. First of all, the Panel finds that the Complainant has clearly evidenced that it has registered trademark rights to JEUNESSE, well before the Disputed Domain Name was registered. Second, the Disputed Domain Name comprises the Complainant’s JEUNESSE mark, in which the Complainant has exclusive rights. The difference between the Disputed Domain Name and the trademark is the addition of the suffix “vn”, which is a geographical identifier, evidently referring to the name of the country where the Respondent resides, i.e., Viet Nam. The Panel finds that “jeunesse” remains the dominant element in the Disputed Domain Name. It is well established that the addition of a geographical identifier such as “vn”, to a trademark does not prevent confusing similarity, as it was found in previous UDRP decisions (see, e.g., Supercell Oy v. See Privacy Guardian.org / Mediastack,WIPO Case No. D2017-2177; Johnson & Johnson v. Tung Nguyen, WIPO Case No. D2017-1635). Third, the Panel finds, similarly to other UDRP panels, that the addition of the gTLD “.com” to the Disputed Domain Name does not constitute an element as to avoid confusing similarity for Policy purposes (see, e.g., Volkswagen AG v. Privacy Protection Services,WIPO Case No. D2012-2066; The Coca-Cola Company v. David Jurkiewicz,WIPO Case No. DME2010-0008; Telecom Personal, S.A., v. NAMEZERO.COM, Inc.,WIPO Case No. D2001-0015; F. Hoffmann La Roche AG v. Macalve e-dominios S.A.,WIPO Case No. D2006-0451; Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003). On the basis of the foregoing findings, and according to paragraph 4(a)(i) of the Policy, the Panel finds that the Disputed Domain Name is confusingly similar to the Complainant's “JEUNESSE” trademark, and the first element of the Policy is established. 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, including: “(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.” The Panel finds that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The Respondent did not refute the Complainant’s contentions. The consensus of previous UDRP decisions is that while the overall burden of proof in UDRP proceedings is on the complainant, once a prima facie case is made, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating his rights or legitimate interests in the Disputed Domain Name (see e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270; Julian Barnes v. Old Barn Studios Limited,WIPO Case No. D2001-0121). In this instant case, the Panel finds that the Respondent has failed to meet that burden since no response was submitted for evidence to the contrary. Regarding paragraph 4(c)(i) of the Policy, the Panel finds, in light of the Complainant’s asserted facts, that no license, permission or authorization of any kind to use the Complainant’s trademark has been granted to the Respondent. There is no evidence available that the Respondent holds any registered or unregistered trademark rights in any jurisdiction. Thus, the Panel finds that the Respondent has no rights in the trademark JEUNESSE. A reseller or distributor may be making a bona fide offering of goods and services and thus have rights or legitimate interests in a domain name if its use meets certain requirements, which are described in the decision Oki Data Americas, Inc. v. ASD, Inc, WIPO Case No. D2001-0903 (“Oki Data”), including: - the respondent must actually be offering the goods or services at issue; - the respondent must use the site to sell only the trademarked goods (otherwise, there is the possibility that the respondent is using the trademark in a domain name to bait consumers and then switch them to other goods); - the site itself must accurately disclose the respondent’s relationship with the trademark owner; and - the respondent must not try to “corner the market” in all relevant domain names, thus depriving the trademark owner of the ability to reflect its own mark in a domain name. In this particular case, the Panel finds the Respondent does not place any statement or disclaimer disclosing accurately its relationship with the Complainant. On the contrary, the website under the Disputed Domain Name contained the logo and advertising video of the Complainant, as shown in the Bailiff Record dated September 11, 2019. In addition, the website under the Disputed Domain Name also comprises the copyright claim “Bản quyền thuộc về Jeunesse Viet Nam” (in English: “Copyrights belong to Jeunesse Viet Nam”). These indications may mislead consumers into believing in a connection or association between the Respondent and the Complainant, where such connection or association does not exist in reality. With such a view, the Panel finds that the unauthorized use of the Disputed Domain Name does not meet the Oki Data criteria and thus, does not constitute a bona fide use within paragraph 4(c)(i) of the Policy. Regarding paragraphs 4(c)(ii) and 4(c)(iii) of the Policy, the Panel finds that there is no evidence that would suggest that the Respondent, as an individual, business, or other organization, has been commonly known by the Disputed Domain Name, or that the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Name. In fact, as it appears following the Complainant’s assertions and evidence with regard to the Respondent’s registration of the Disputed Domain Name, the Respondent had full knowledge of the JEUNESSE trademark and had an intention to gain profit by riding on the goodwill and reputation of the Complainant. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The second element under paragraph 4(a)(ii) of the Policy is established. 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 the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith, including: “(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 website 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 website or location or of a product or service on your website or location.” Each of the four circumstances in paragraph 4(b) of the Policy, if found, is an instance of “registration and use of a domain name in bad faith”. The Panel finds that the Complainant has put forth evidence that the Respondent has registered and used the Disputed Domain Name in bad faith. The Respondent did not reply to the Complainant’s contentions and, therefore, did not refute the Complainant’s contentions. The Panel further finds that the Complainant’s JEUNESSE trademarks have been registered in numerous countries. The Complainant’s trademarks have been registered and used in, among other countries, Viet Nam, where the Respondent resides. The Disputed Domain Name comprises the JEUNESSE trademark in its entirety, adding only a geographical identifier “vn” (which is the common abbreviation of “Vietnam”). Given the extensive use of the JEUNESSE trademark for skin care and nutritional products by the Complainant, which occurs in numerous countries, including in Viet Nam, where the Respondent resides, it is very unlikely that the Respondent registered the Disputed Domain Name in a fortuity. Also, in consideration of the use of the Disputed Domain Name and the contents of the website there under, the Panel is of the view that the Respondent obviously knew of the Complainant and its JEUNESSE trademark when it registered the Disputed Domain Name, and the Panel considers the registration an attempt by the Respondent as to take advantage of the Complainant’s goodwill. On the date of this Decision, the Panel accesses the Disputed Domain Name and finds that the interface of its associated website is slightly different from the one shown in the Bailiff Record dated September 11, 2019. However, it is well proved and evidenced by the Complainant that the website under the Disputed Domain Name offered the skin care and nutritional products branded with the Complainant’s trademark JEUNESSE. In addition to the adoption of the Complainant’s JEUNESSE trademark as a uniquely distinctive part in the Disputed Domain Name, the Respondent used the Complainant’s trademarks, advertising video on the website, and falsely represented itself like an affiliate or distributor of the Complainant by the copyright claim “Bản quyền thuộc về Jeunesse Viet Nam” (in English: “Copyrights belong to Jeunesse Viet Nam”). With the said facts, the Panel finds that the Respondent intentionally registered and used the Disputed Domain Name for commercial gain and that the Respondent’s actual use of the Disputed Domain Name appears to mislead consumers and confuse them by making them believe that the website is associated, fostered or recommended by the Complainant. Such misleading behavior is an indication of bad faith within the meaning of paragraph 4(b)(iv) of the Policy, on the part of the Respondent. Taking into account all of the above and the available record, the Panel finds that the Disputed Domain Name was registered and used by the Respondent in bad faith and the third element under paragraph 4(a)(iii) of the Policy is established. 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 Pham Nghiem Xuan Bac
Sole Panelist
Date: February 13, 2020
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