The Complainant is Laboratoires SVR, France, represented by Ebrand Services, France.
The Respondent is Thomas Lacloche, United States of America (“United States”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 27, 2020. On August 28, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 28, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 8, 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 amendment to the Complaint on September 8, 2020. The Center verified that the Complaint, together with the amendment to 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, and the proceedings commenced on September 28, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 18, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 19, 2020. The Center appointed Nicholas Smith as the sole panelist in this matter on October 21, 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 is a French company that specializes in cosmetics and dermatological solutions. It was established in 1962, has subsidiaries in seven countries outside France, and has an annual turnover of EUR 60 million. The Complainant is part of the Kresk Developpement group, along with a related entity, Laboratorires Fill-Med. The Complainant holds an international trade mark registration denoting various countries (such as France and Switzerland and also elsewhere such as the United States and Russia and Japan for a mark consisting of the letters “SVR” (the “SVR Mark”) for a variety of cosmetic goods in classes 3 and 5 dating from July 24, 2012 (International Registration No. 1148914). The Domain Name was registered on July 16, 2020. The Domain Name redirects to a website (the “Respondent’s Website”) that offers sponsored listings. The evidence in the Complaint is that the Domain Name has been used by the Respondent as an email address in the address format “[name]@labo-sur.com”. This email address was used as part of a phishing scheme where a series of emails purporting to be from the Complainant’s related company Laboratoires Fill-Med and the Complainant (the email being sent from an email address purporting to be from Laboratoires Fill-Med and copying in the “[name]@labo-sur.com” address) were sent to third parties giving directions regarding the payment of funds to an account unconnected to the Complainant (or Laboratoires Fill-Med). 5. Parties’ Contentions A. Complainant The Complainant makes the following contentions: (i) that the Domain Name is identical or confusingly similar to the Complainant’s SVR Mark; (ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. The Complainant is the owner of the SVR Mark, having registered the SVR Mark in various jurisdictions. The Domain Name consists of the SVR Mark with the “v” being replaced by a “u” to create a minor misspelling along with the addition of the abbreviation “labo-”, which is an abbreviation of the Complainant’s name. There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Complainant has not granted any license or authorization for the Respondent to use the SVR Mark. The Respondent does not use the Domain Name for a bona fide purpose or legitimate noncommercial purpose. Rather, the Domain Name has been used for a pay-per-click site and for emails impersonating the Complainant, which does not grant the Respondent rights or legitimate interests in the Domain Name. The Domain Name was registered and is being used in bad faith. The Domain Name is being used as part of a phishing scheme to create email addresses that impersonate the Complainant and a related entity of the Complainant and use those addresses to send emails directing the payment of sums of money to accounts unconnected to the Complainant or its related entity. This amounts to an attempt to perpetuate fraud. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar To prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark. The Complainant is the owner of the SVR Mark, having registrations for the SVR Mark as a trade mark in France and other countries around the world. Disregarding the “.com” generic Top-Level Domain (“gTLD”) as a necessary technical requirement of the Domain Name, the Domain Name is confusingly similar to the SVR Mark. The Domain Name consists of a minor misspelling (replacing the “v” with a “u”) of the SVR Mark preceded by the term “labo-”, which is an abbreviation of the first word of the Complainant’s name. Also, along the same lines as is described with respect to website content affirming confusing similarity in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) section 1.8, the “overall facts and circumstances” here, namely fraudulent emails which impersonate the Complainant by way of a domain name which includes an abbreviation of the first word of the Complainant’s name thus tying the term to the mark in the mind of the viewer, affirm the finding of confusing similarity here. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name. Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name: “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 trade mark or service mark rights; or (iii) you are making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.” The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the SVR Mark or a mark similar to the SVR Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial use. Given the use of a Domain Name for a phishing scheme, the fact that the Domain Name resolves to a parking page with pay-per-click links does not amount to use for a bona fide offering of goods and services. The Panel is satisfied by the evidence submitted by the Complainant that the Respondent has used the Domain Name as part of a phishing scheme where it passes itself off as the Complainant and its related entity in order to mislead recipients of emails into paying sums of money owed to the Complainant (and/or its related entity) into accounts unconnected to the Complainant and its related entity. Such conduct is fraudulent and is not a bona fide offering of goods or services. While the Panel notes that the phishing emails annexed to the Complaint were not sent from the email account associated with the Domain Name, the presence of the email account associated with the Domain Name was clearly an element of the Respondent’s phishing scheme as it gave both an air of legitimacy to the scheme (the recipient would generally expect to receive emails from both Laboratoires Fill-Med and the Complainant) and ensured that the Respondent had a second avenue to send improper emails in the event that the email address from which the phishing emails were sent was compromised. To put it another way, it is implausible that a party would innocently register a domain name confusingly similar to the SVR Mark, set up an email account, and then within a week be copied on a phishing email purportedly sent from Complainant’s related company. The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had an opportunity to rebut the prima facie case that it lacks rights or legitimate interests but has chosen not to do so. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith 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 (Policy, paragraph 4(b)): (i) circumstances indicating that the Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name to the Complainant who is the owners of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or (ii) the Respondent has registered the Domain Name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or (iii) the Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location. The Panel finds that the Respondent was aware of the Complainant at the time the Domain Name was registered. The Domain Name has been used to create an email account from which the Respondent has participated in a phishing scheme in which it impersonates the Complainant and the Complainant’s related company. The Respondent does not provide, nor is it apparent to the Panel, any reason why the Domain Name was registered other than by reference to the Complainant. The registration of the Domain Name in awareness of the Complainant and its rights in the SVR Mark and in the absence of rights or legitimate interests amounts to registration in bad faith. The Respondent is using the Domain Name as part of a broader scheme to send emails seeking to mislead recipients as to the identity of the sender for its own commercial gain. Such conduct is deceptive, illegal, and in previous UDRP decisions has been found to be evidence of registration and use in bad faith, see The Coca-Cola Company v. Marcus Steiner,WIPO Case No. D2012-1804. The Panel finds that the Respondent is using the Domain Name in bad faith. Accordingly, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith under paragraph 4(a)(iii) 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 Domain Name Nicholas Smith
Sole Panelist
Date: October 23, 2020
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