The Complainant is Alain Afflelou Franchiseur, France, represented by Novagraaf France, France.
The Respondent is Lihongbo, Lihongbo, China. 2. The Domain Names and Registrar
The disputed domain names The Complaint 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 names. On August 7, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 11, 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 August 20, 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 26, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 15, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 23, 2020. The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on September 30, 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. On October 5, 2020, the Panel issued a Procedural Order to the Respondent, requesting the Respondent to indicate if he intentionally did not file a Response, and requiring an answer by October 10, 2020. The Respondent did not respond to this Procedural Order and did not file a Response. 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 the European Union, with activities in several European countries, and reaching a revenue of over EUR 700 million in 2016. 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 names on March 23, 2020, to which it received no answer. The disputed domain names were all created on the same date, March 10, 2020 and are currently linked to active websites, each displaying what are presumed to be pay-per-click hyperlinks to the Complainant’s products as well as to third party providers of an array of other products and services. 5. Parties’ Contentions A. Complainant The Complainant essentially contends that the disputed domain names are confusingly similar to its prior trademarks for AFFLELOU, that the Respondent has no rights or legitimate interests in respect of the disputed domain names, and that the disputed domain names were registered, and are 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 names 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 names, 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 or its customers. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the disputed domain names and constitutes registration and use in bad faith. The Complainant requests the transfer of the disputed domain names. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Policy requires the Complainant to prove three elements: (i) the disputed domain names are identical or confusingly similar to a trademark 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 names; and (iii) the disputed domain names have been registered and are 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 names were selected by intentionally misspelling the Complainant’s trademark for AFFLELOU, incorporating such trademark in its entirety, except that a single letter is replaced or omitted from such trademark in each of the disputed domain names. Particularly, in disputed domain name On the basis of the evidence and arguments submitted, the Panel finds that the Complainant makes out a prima facie case 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 names 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 names. 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). However, the Respondent did not provide any Response or evidence in this administrative proceeding. Furthermore, upon review of the facts, the Panel notes that the disputed domain names direct to active webpages containing what are presumed to be pay-per-click hyperlinks to the Complainant’s products as well as to third party providers of an array of other products and services. 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 finds 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 names with the intentional misspelling of the Complainant’s known mark (“typosquatting”) by the Respondent, who is entirely unaffiliated with the Complainant, is, by itself, sufficient to create a presumption of 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 names would have made it clear to the Respondent that the Complainant owned registered trademarks in AFFLELOU and used them extensively. In the Panel’s view, the preceding elements clearly indicate the bad faith of the Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain names in bad faith. As to use of the disputed domain names in bad faith, the websites linked to the disputed domain names currently display pay-per-click hyperlinks to the Complainant’s products as well as to third party providers of an array of other products and services, which shows that the Respondent is misleading and diverting consumers for commercial gain to such websites. Moreover, the Complainant also provides evidence that the mail exchanger (MX) records for the disputed domain names indicate that the Respondent has connected the disputed domain names to email servers, which creates a serious risk that the Respondent may be using the disputed domain names, which are 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 names 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 names in bad faith. Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third element 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 names, Deanna Wong Wai Man
Sole Panelist
Date: October 14, 2020
Full & Egal Universal Law Academy