The Complainant is Hello Body GmbH, Germany, represented by TALIENS, Germany.
The Respondent is Contact Privacy Inc. Customer 0157402315, Canada / Presko Digital, Hellobody, France. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 5, 2020. On June 5, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 5, 2020, 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. The Center sent an email communication to the Complainant on June 9, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on June 12, 2020. 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 June 15, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 5, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 6, 2020. The Center appointed Benoit Van Asbroeck as the sole panelist in this matter on July 12, 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, Hello Body GmbH, is a company incorporated in Germany in the body care and cosmetic sector. It is a successful startup which commercializes face-care products, body care products and hair products in the United States of America and the European market. The Complainant is the owner of the trademark containing or comprising HELLOBODY across various jurisdictions and possesses a numerous trademark registrations. These registrations include: - European Union trademark with registration No. 016157141, registered on April 28, 2017, in International classes 3, 5 and 35; - International trademark with registration No. 1444308, registered on November 16, 2018, in International classes 3 and 35; - Canadian trademark with registration No. 1931079, registered on November 19, 2018, in International classes 3 and 35. Additionally, the Complainant is also the registrant of various domain names The disputed domain name was registered on April 1, 2020, well after the Complainant secured rights to the trademarks. According to the evidence provided by the Complainant, the disputed domain name initially resolved to a webpage copying the look-and-feel of the Complainant, making use of the Complainant’s trademark and company name, using copyright protected content of the Complainant’s website and selling allegedly the Complainant’s products. The Respondent used the email server associated with the disputed domain name to send emails relating to the purchase of products. The evidence also shows that the Respondent purchased Google Adverts using keywords tied to the Complainant. 5. Parties’ Contentions A. Complainant On the merits, 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 disputed domain name is confusingly similar to the registered trademark in which the Complainant has rights. It represents that the disputed domain name reproduces the term “hellobody” in its entirety except for one letter discrepancy, to become Additionally, the Complainant claims that the mere addition of a hyphen does not negate the confusing similarity between the disputed domain name and the Complainant’s trademark. Finally, the Complainant contends that the generic Top-Level Domain (“gTLD”) “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar. (b) the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant states that the Respondent is not affiliated in any way with the Complainant and has not been authorized or licensed by the Complainant to use its trademarks. The Complainant further contends that it is clear that the Respondent seeks to pass itself off as the Complainant by mimicking the Complainant’s website. According to the Complainant, legitimate rights or bona fide use do not exist when there is deliberate infringement of another’s rights, or when the domain name is used in bad faith to defraud consumers by allegedly selling the Complainant’s goods, without actually delivering them. Moreover, the Respondent does not appear to have used the disputed domain name for any legitimate noncommercial purpose. The disputed domain name currently resolves to a website selling allegedly the Complainant’s goods. In doing so, the Respondent’s use of the disputed domain name intentionally attracts consumers looking for the Complainant to a competitive website for the Respondent’s commercial gain as these sales are likely to generate revenues. With reference to section 2.13.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the Complainant also submits that the use of the disputed domain name for illegal activity cannot confer rights or a legitimate interest on the Respondent. Finally, the Complainant contends that the Respondent is and was not commonly known by the disputed domain name. (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, the Respondent knew the existence of the Complainant’s trademark given that the website connected to it exactly reproduced copyrighted contents and layout of the Complainant’s website. The Complainant’s trademarks were also registered many years before the disputed domain name was registered. The Complainant further asserts that the Respondent used the disputed domain name to intentionally attempt to attract, for commercial gain, Internet users to its website with allegedly the Complainant’s products made available for sale and that are ultimately not delivered, by creating a likelihood of confusion with the Complainant’s trademark. The finding of bad faith registration and use is further enhanced by the circumstances of this case, including the following factors: - the use of a privacy service hiding the identity of the Respondent; - the IP infringing content of the website linked to the disputed domain name; - the implausibility of any good faith use to which the disputed domain name may be put, in particular taking into account that it is being used for fraudulent activities; - the absence of rights or legitimate interests coupled with no credible explanation for the Respondent’s choice in the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. 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 to HELLOBODY. Secondly, the disputed domain name differs from the Complainant’s trademark HELLOBODY merely by the misspelling of the letter “b” and the letter “d”. In the view of the Panel, the mentioned misspelling does not influence the similar overall impression of the disputed domain name and the trademark as there are only minor differences in the appearance. This conduct is commonly referred to as “typosquatting” and creates virtually identical and/or confusingly similar domain names to the trademarks of complainants. Thirdly, this Panel finds that the addition of a hyphen between the words “hello” and “dody” does not constitute an element so as to prevent a finding of confusing similarity for purposes of the Policy. Considering the requirement that the disputed domain name and the trademark must be confusingly similar, this Panel believes that the expression “hello-dody” is confusingly similar to the trademark HELLOBODY for the purposes of the analysis under the first element. Fourthly, this Panel finds, similarly to other UDRP panels, that the addition of the gTLD “.com” to the disputed domain name is viewed a standard registration requirement and as such is disregarded in this case. 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 HELLOBODY trademark. B. 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 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. - there is no evidence that the Respondent has been commonly known by the 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. C. 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 website or other on-ine 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, would be an instance of “registration and use of a domain name in bad faith”. 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 HELLOBODY 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 HELLOBODY trademark. The Complainant’s 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. This conclusion is enhanced by the fact that the Respondent has chosen to offer allegedly the Complainant’s goods on the website to which the disputed domain name resolves. As for the use of the disputed domain name, based on the evidence submitted the Respondent is using it to direct consumers to a website selling allegedly the Complainant’s goods. Such use, which at its heart relies on exploiting user confusion, cannot constitute bona fide use. The Panel also notes the nature of the disputed domain name being a typosquatting version of the Complainant’s trademark leading to a webpage copying the look-and-feel of the Complainant, which may confuse the public about the business origin, the quality of products or services, and about the owner of the disputed domain name. At the time of the Decision, the disputed domain name does not resolve to an active website. That fact does not alter the Panel’s above findings. Non-use of a domain name can, in certain circumstances, constitute a domain name being used in bad faith. The Panel has considered whether, in the circumstances of this particular case, the passive holding of the disputed domain name by the Respondent amounts to the Respondent acting in bad faith. Relying on Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003, the Panel concludes that the Complainant has proven bad faith under the passive holding doctrine. The Panel finds the Respondent’s use of a privacy service, its purchasing of Google Adverts to drive traffic to its website, and the infringing content of the website linked to the disputed domain name to be further indicators of the Respondent’s bad faith. In light of the above, 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 Benoit Van Asbroeck
Sole Panelist
Date: July 26, 2020
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