The Complainant is Les Parfumeries Fragonard, France, represented by Inlex IP Expertise, France.
The Respondent is Thanh Van Pham, Viet Nam. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 4, 2020. On November 4, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 4, 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 November 5, 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 November 5, 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 November 9, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 29, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 30, 2020. The Center appointed Carol Anne Been as the sole panelist in this matter on December 7, 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 historic perfume company located in Grasse, France, which is considered the world capital of perfumes. The Complainant owns rights in the trademark FRAGONARD for cosmetics and, in particular, perfumes. The FRAGONARD mark was adopted in 1926 and is well-known in the cosmetic field. Among its trademark registrations, the Complainant has registrations for the FRAGONARD mark in France such as the French Trademark Registration No. 327342, registered on October 18, 1985. The Complainant’s mark is registered and used around the world. The Complainant owns numerous domain names using the FRAGONARD mark, which resolve to its website at “www.fragonard.com”. The disputed domain name was registered on October 2, 2020. The disputed domain name resolves to a parked page with pay-per-click (“PPC”) links displaying third party perfume sites. The MX records attached to the disputed domain name have been activated which allows use of email addresses with the disputed domain name. 5. Parties’ Contentions A. Complainant The Complainant alleges the disputed domain name is identical or confusingly similar to its prior rights in the FRAGONARD mark, and the disputed domain name as a whole is not different enough to avoid a likelihood of confusion with its rights. The Complainant claims the Respondent has no rights or legitimate interests in the disputed domain name because the disputed domain name was registered after the Complainant established its rights in the FRAGONARD mark; the Respondent has no trademark registration for a FRAGONARD mark; no business or legal relationship exists between the parties; and the disputed domain name leads to a parked page with links to third party sites. The Complainant claims that the disputed domain name is being used in bad faith despite passive holding because the Complainant’s mark is distinctive and well-known worldwide, and the Respondent would have learned of the Complainant’s mark through a simple Google search or search of trademark filings. Further, the Respondent failed to submit a response, and any good faith use is implausible. The Complainant asserts the only reason the Respondent registered the disputed domain name was to create web traffic to the site at the disputed domain name based on recognition of the Complainant’s mark. The Complainant also suspects the Respondent is using the disputed domain name to generate profits with email addresses using the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings While the Complainant bears the burden of proof on the allegations in the Complaint, the Respondent’s failure to respond and provide evidence or arguments against the Complainant’s prima facie case may lead the Panel to draw inferences against the Respondent, particularly where no other plausible conclusion is apparent. The Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), Section 4.3. A. Identical or Confusingly Similar The Complainant’s rights in the FRAGONARD mark date to 1926 and are well-established by registration in many jurisdictions. The disputed domain name incorporates the Complainant’s mark in its entirety, adding only the generic Top-Level-Domain (“gTLD”), “.fun”. The addition of the gTLD does not prevent a finding of confusing similarity with the Complainant’s rights. The Panel finds the disputed domain name is confusingly similar to a mark in which the Complainant has rights. B. Rights or Legitimate Interests The Respondent has no apparent rights or legitimate interests in the disputed domain name. The Respondent obtained the disputed domain name long after the Complainant established its rights in the FRAGONARD mark, and likely would have been aware of or could have easily discovered the Complainant’s rights. Further, the disputed domain name leads to a parked page with links to third party perfume sites. In the sense of paragraph 4(c) of the Policy, the use of a domain name to host a parked page with PPC links, apparently to capitalize on the reputation and goodwill of the complainant’s mark, has not been viewed as evidencing rights or legitimate interests in the disputed domain name. See WIPO Overview 3.0, Section 2.9. Accordingly, the Complainant has put forward a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, which the Respondent has not rebutted. The Panel finds the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The Respondent registered the disputed domain name long after the Complainant first used and registered its FRAGONARD mark, and long after the mark had become well recognized around the world. Inclusion of the Complainant’s precise mark in the disputed domain name suggests that the Respondent was aware of the Complainant’s prior rights. Use of the disputed domain name for a parked page with links to perfume sites suggests that the Respondent profits on a PPC basis from generating web traffic to the site at the disputed domain name based on recognition of the Complainant’s mark and confusion with the Complainant’s rights. Activation of the MX records attached to the disputed domain name also suggests possible use of email addresses with the disputed domain name to generate profits based on confusion with the Complainant’s rights. The Respondent had the opportunity to respond to the Complaint, but failed to do so. The Respondent’s failure to rebut the case asserted by the Complainant indicates the lack of any other plausible explanation. The Panel finds the Respondent registered and is using the disputed domain name in bad faith. 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, Carol Anne Been
Sole Panelist
Date: December 21, 2020
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