Complainant is Mr. Hubert Barbier dit Barrere, France, represented by ALTANA, France.
Respondent is Kun Yang Liu, China. 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 10, 2020. On June 11, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 11, 2020, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on June 19, 2020. In accordance with the Rules, paragraph 5, the due date for Response was July 9, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 15, 2020. The Center appointed Georges Nahitchevansky as the sole panelist in this matter on August 10, 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 Complainant is a fashion designer. Complainant has used the name Hubert Barrere in connection with the design of corsetry and embroidery and in the Haute Couture segment of the fashion industry since at least 1996. Complainant owns a trademark registration for his name Hubert Barrere in France in multiple international classes (Registration No. 4261100), which issued to registration on October 14, 2016. Complainant previously owned and used the disputed domain name Complainant contends that he is a well-known fashion designer with a strong reputation in France and internationally, particularly in China. Complainant contends that he has not only registered his name Hubert Barrere as a trademark in France in multiple International Classes, but that Complainant has granted licenses in the name and mark HUBERT BARRERE to third parties, including for a limited edition collection of lingerie. Complainant notes that he previously owned and used the disputed domain name for a website that promoted and provided information concerning Complainant’s fashion design services. Complainant maintains that on an account of a technical failure on the part of Complainant’s domain name provider the disputed domain name was not timely renewed in 2019 and lapsed, whereupon Respondent acquired the disputed domain name through a drop-catch service. Complainant argues that the disputed domain name is identical to Complainant’s HUBERT BARRERE name and mark as it fully and solely consists of the HUBERT BARRERE name and mark. Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name as Respondent: (i) has no intellectual property rights in, and is not known by, the name and mark HUBERT BARRERE, (ii) has used the disputed domain name to redirect Internet users to a website offering multiple gambling, poker and online betting links, and (iii) owns and uses multiple other domain names to generate web traffic for the same website offering online gaming and betting links. Lastly, Complainant argues that Respondent has registered and used the disputed domain name in bad faith as Respondent used a drop-catching service to acquire the disputed domain name and thus was aware that Complainant had previously owned the disputed domain name. In that regard, Complainant maintains that Respondent through a simple search on the Internet would have discovered the notoriety of Complainant and that the HUBERT BARRERE name and mark is registered in France. Complainant asserts that Respondent has acted in bad faith given that Respondent disregarded Complainant’s rights in the HUBERT BARRERE name and mark and has simply used the disputed domain name for commercial gain by redirecting web users to Respondent’s website that promotes links to online gaming and gambling offerings. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) 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. Here, although Respondent has failed to respond to the Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. A. Identical or Confusingly Similar Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0 at section 1.2.1. Complainant has provided evidence that it owns a trademark registration for the HUBERT BARRERE name and mark in France that issued before Respondent registered the disputed domain name. Complainant has also provided much evidence regarding Complainant’s use of his name Hubert Barrere in connection with his fashion designer services in France, China and internationally. While the Panel does not have to determine whether Complainant also owns unregistered rights in the HUBERT BARRERE name and mark outside of France, the Panel notes that based on the evidence submitted, which shows extensive use of the Hubert Barrere name in connection with fashion design, Complainant has likely developed some unregistered rights in the HUBERT BARRERE name and mark outside of France. With Complainant’s rights in the HUBERT BARRERE mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the Top-Level Domain (“TLD”) such as “.com”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross,WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold. In the instant proceeding, the disputed domain name is identical to Complainant’s HUBERT BARRERE name and mark as it fully and solely consists of the name and mark HUBERT BARRERE. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s HUBERT BARRERE name and mark and in showing that the disputed domain name is identical to that trademark. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP. The evidence submitted in this proceeding shows that Complainant adopted and has been using the name and mark HUBERT BARRERE well before Respondent registered the disputed domain name. The evidence also shows that Complainant enjoys some notoriety as a fashion designer in France and in China. Given that Respondent registered the disputed domain name as soon as Complainant inadvertently let the disputed domain name lapse in 2019 and then immediately used the disputed domain name to redirect web traffic to a website full of links to online gaming and gambling offering, it appears more likely than not that Respondent, who has failed to respond or contest this matter, simply registered the disputed domain name to generate more traffic for Respondent’s website. As the evidence before the Panel shows that Respondent’s use of the disputed domain name has solely been to redirect web traffic to Respondent’s online gaming website, it appears that Respondent opportunistically registered the disputed domain name for purposes of exploiting Complainant’s established rights in the HUBERT BARRERE name and mark for Respondent’s profit, and not for some other legitimate purpose. In sum, given that Complainant has established with sufficient evidence that it owns rights in the HUBERT BARRERE mark, and given Respondent’s above noted actions and failure to file a Response, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case. C. Registered and Used in Bad Faith In view of the fact that the disputed domain name fully includes the HUBERT BARRERE name and mark, and given that Respondent has chosen not to contest the matter, it is easy to infer that Respondent was likely aware of, or acted in reckless disregard of, Complainant’s rights in the HUBERT BARRERE mark when Respondent registered the disputed domain name through a drop-catch service. Respondent was clearly on notice that the disputed domain name had been previously owned and used by Complainant, and a simple search would have easily revealed Complainant’s rights in the name and mark HUBERT BARRERE, and/or Complainant’s prior ownership and use of the disputed domain name. That Respondent nevertheless acquired the disputed domain name and then immediately started using such to generate and redirect web traffic to a website promoting online gaming and gambling offerings suggests that Respondent registered and has been using the disputed domain name in bad faith and for purposes of profiting from its association with Complainant. In sum, what the evidence shows here is that Respondent more likely than not knowingly registered and is using the disputed name in bad faith to profit from Complainant’s rights in the HUBERT BARRERE name and mark. Accordingly, the Panel finds that Complainant succeeds under this 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 Georges Nahitchevansky
Sole Panelist
Date: August 24, 2020
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