The Complainant is Alain Afflelou Franchiseur, France, represented by Novagraaf France, France.
The Respondent is lihongbo, China, self-represented. 2. The Domain Name and Registrar
The disputed domain name The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 5, 2020. On August 5, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 6, 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 August 6, 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 in English on August 7, 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 August 17, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 6, 2020. The Respondent sent an email regarding the language of the proceeding on August 8, 2020. On August 9, 2020, the Respondent submitted the Response. Accordingly, the Center notified the Parties it would proceed to Panel Appointment. The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on September 15, 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 in this proceeding is an optical products company headquartered in France, founded in 1972. The Complainant is a large franchisor of optical products and services in European Union, with activities in countries such as France (over 700 shops) and Spain (over 300 shops). The Complainant owns a portfolio of trademark registrations for AFFLELOU, for instance, French trademark registration number 4267761, registered on April 26, 2016 and International trademark registration number 1305969, registered on April 26, 2016 designating countries such as China, the Respondent’s home jurisdiction. The Complainant provides evidence that it first sought to settle this matter amicably through a cease-and-desist letter sent to the privacy service as indicated in the WhoIs database as the registrant for the disputed domain name on December 4, 2019, to which it received no answer. The Respondent is a natural person from China, and is self-represented in this proceeding. The disputed domain name was created on November 29, 2019 and is currently linked to an active website, displaying what are presumed to be pay-per-click hyperlinks to the Complainant’s products as well as third party providers of optical products. 5. Parties’ Contentions A. Complainant The Complainant essentially contends that the disputed domain name is confusingly similar to its prior trademarks for AFFLELOU, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered, and is being used in bad faith. The Complainant claims that its trademarks are famous and well-regarded in the optical products sector, and provides evidence of its marketing materials and media articles about the company and its founder. The Complainant essentially contends that the Respondent chose to register the disputed domain name by willfully misspelling (“typosquatting”) the Complainant’s trademarks for AFFLELOU to create consumer confusion and obtain unlawful financial gains. The Complainant also contends that the Respondent configured email servers on the disputed domain name, which produces the risk that the Respondent is using the email servers to send fraudulent emails, to pretend to be the Complainant, to gather personal data, or to place orders in the name of the Complainant or share information about the Complainant. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name and constitutes registration and use in bad faith. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent essentially contends that the disputed domain name is globally unique and dissimilar to the Complainant’s trademarks. The Respondent argues that the disputed domain name is composed of common word components (“aff” + “elou”.com), whereby the “aff” and “elou” components meaning “联盟” (alliance/league/union) and “易楼” (literal translation “Easy House”) would refer to real estate sector related words in Chinese. The Respondent also contends that there could be no confusion since the disputed domain name would be recognized by computer systems, which could accurately distinguish very similar domain names. Furthermore, the Respondent contends that he obtained the disputed domain name for personal use, and “parked” it, which, he claims, is a recognized practice throughout the Internet sector. The Respondent also argues that he obtained the disputed domain name through legal and formal channels, and not through malicious registration or to mislead Internet users, and that there is no bad faith involved in his registration of the disputed domain name. Finally, the Respondent contends that the Complainant is conducting reverse domain name hijacking in this case, and requests the Panel to reject the Complaint. 6. Discussion and Findings 6.1. Preliminary Issue: Language of the Proceeding Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement. However, the Panel is given the authority to determine a language of proceeding other than the language of the Registration Agreement, taking into account the circumstances of every individual case. According to the Registrar’s verification response of August 6, 2020, the Registration Agreement is in English. Nevertheless, on August 8, 2020, the Respondent sent a bilingual email regarding the language of the proceeding, and filed its Response exclusively in Chinese on August 9, 2020, containing a request that the decision should be issued in Chinese. In considering the Respondent’s request that the language of the proceeding be Chinese and English and a decision to be issued in Chinese, the Panel has carefully considered all elements of this case, in particular, the fact that the Registration Agreement is in English; the fact that the Respondent sent a bilingual email on August 8, 2020 and that the disputed domain name resolves to an active webpage which only contains text in English, so that the Panel concludes that the Respondent is able to understand and communicate in English; and the fact that Chinese as the language of the proceeding could lead to unwarranted costs and delays for the Complainant. In view of all these elements, the Panel rules that the language of the proceeding shall be English and the decision shall be issued in English. However, in accordance with the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.5.1, the Panel accepts all communications and documents in Chinese submitted by the Respondent, and does not require a translation thereof. 6.2. Discussion and Findings on the Merits The Policy requires the Complainant to prove three elements: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (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. Based on the evidence and arguments submitted, the Panel’s findings are as follows: A. Identical or Confusingly Similar The Panel finds that the Complainant has shown sufficient evidence that it has valid rights in the mark AFFLELOU, based on its intensive use and registration of the same as a trademark in several jurisdictions. Moreover, as to confusing similarity, the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9, states: “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. In this case, the Panel considers that the disputed domain name was selected by intentionally misspelling the Complainant’s trademark for AFFLELOU, incorporating such trademark in its entirety, except that a single letter (namely an “l”) is omitted from such trademark. According to the Panel, this is a clear case of intentional misspelling of the Complainant’s trademark, or typosquatting. Given the preceding finding, the Panel cannot accept the Respondent’s unsubstantiated arguments regarding the alleged absence of confusion. Accordingly, the Panel rules that the disputed domain name is confusingly similar to the Complainant’s trademark and finds that the Complainant has satisfied the requirements of the first element under the Policy. B. Rights or Legitimate Interests On the basis of the evidence and arguments submitted, the Panel holds that the Complainant makes out a prima facie case that that the Respondent is not, and has never been, an authorized reseller, service provider, licensee or distributor of the Complainant, is not a good faith provider of goods or services under the disputed domain name and is not making legitimate noncommercial use or fair use of the Complainant’s trademarks. The Panel also notes that the Respondent is not commonly known by the disputed domain name. As such, the Panel finds that the burden of production regarding this element shifts to the Respondent (see WIPO Overview 3.0, section 2.1). The Respondent’s main arguments regarding its rights or legitimate interests in the disputed domain name are: (1) that he obtained the disputed domain name through legal and formal channels, and not through malicious registration; and (2) that he obtained the disputed domain name for personal use, and “parked” it, which, he claims, is a recognized practice throughout the Internet sector. The Panel notes that the Respondent did not submit any evidence in support of his allegations. The Panel disagrees with the Respondent’s arguments. Firstly, it is the settled view of UDRP panels applying the Policy that the mere registration of a domain name does not establish rights or legitimate interests in such domain name (see in this regard for instance National Football League Properties, Inc. and Chargers Football Company v. One Sex Entertainment Co., a/k/a chargergirls.net,WIPO Case No. D2000-0118 and N.C.P. Marketing Group, Inc. v. Entredomains,WIPO Case No. D2000-0387). Moreover, upon review of the facts, the Panel notes that the disputed domain name directs to an active webpage containing what are presumed to be pay-per-click hyperlinks to the Complainant’s products as well as third party providers of optical products. This shows the Respondent’s intention to divert consumers for commercial gain to such third party websites, by taking unfair advantage of the goodwill and reputation of the Complainant’s trademarks for AFFLELOU (see also previous UDRP decisions in this sense such as Maker Studios, Inc. v. ORM LTD / Contact Privacy Inc. Customer 0137258808,WIPO Case No. D2014-0918 and Comerica Incorporated v. Balticsea LLC / Contact Privacy Inc. Customer 0131519121,WIPO Case No. D2013-0932). On the basis of the foregoing, the Panel considers that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply, and that the Complainant has satisfied the requirements of the second element under the Policy. C. Registered and Used in Bad Faith The Panel finds that the registration of the disputed domain name with the intentional misspelling of the Complainant’s known mark (“typosquatting”) by the Respondent, who is entirely unaffiliated with the Complainant, can by itself create a presumption of the bad faith of the Respondent (see in this regard also Randstad Holding nv v. Pinaki Kar,WIPO Case No. D2013-1796). Furthermore, even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owns a registered trademark in AFFLELOU and uses it extensively. In the Panel’s view, the preceding elements clearly indicate the bad faith of Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain name in bad faith. As to use of the disputed domain name in bad faith, the website linked to the disputed domain name currently displays pay-per-click hyperlinks to the Complainant’s products as well as third party providers of optical products, which shows that the Respondent is misleading and diverting consumers for commercial gain to such third party websites. Moreover, the Complainant also provides evidence that the mail exchanger (MX) records for the disputed domain name indicate that the Respondent has connected the disputed domain name to email servers, which creates a serious risk that the Respondent may be using the disputed domain name, which is confusingly similar to the Complainant’s trademarks, for misrepresentations and/or phishing and spamming activities (see in this sense also previous UDRP decisions such as Carrefour v. WhoisGuard, Inc., WhoisGuard Protected / Robert Jurek, Katrin Kafut, Purchasing clerk, Starship Tapes & Records,WIPO Case No. D2017-2533). The preceding elements lead the Panel to conclude that the Respondent is using the disputed domain name in bad faith, to take unfair advantage of the Complainant’s trademarks. The Panel therefore rules that it has been demonstrated that the Respondent is using the disputed domain name in bad faith. The Panel notes that Respondent merely alleges in his Response that he obtained the disputed domain name through legal and formal channels for personal use, and not maliciously or to mislead Internet users. The Panel notes that the Respondent does not substantiate these claims in any way, and does not provide any evidence regarding these claims. On the basis of the elements set out above, the Panel rules that the Complainant has satisfied the requirements of the third element under the Policy. D. Reverse Domain Name Hijacking Noting that the Complainant has satisfied the three elements under paragraph 4(a) of the Policy, the Panel finds that the Complaint was not brought in bad faith and does not constitute an abuse of the administrative proceeding. 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 Deanna Wong Wai Man
Sole Panelist
Date: October 2, 2020
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