The Complainant is Korian, France, represented by Scan Avocats AARPI, France.
The Respondent is Redacted For Privacy (DT), United States of America (“United States”) / Kumru Pinar, Turkey. 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 6, 2020. On November 6, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 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 November 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 November 13, 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 20, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 10, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 11, 2020. The Center appointed Marilena Comanescu as the sole panelist in this matter on December 29, 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 founded in 2003, which provides care services to the elderly and vulnerable people, thorough the management of retirement homes and specialized clinics. Currently, the Complainant is carrying its activities in France, Germany, Belgium, Italy, Spain, and the Netherlands, serving more than 470,000 patients or residents, employing more than 56,000 people, and had a total turnover of EUR 13,6 billion in 2019. The Complainant holds several trademark registrations for KORIAN, including for KORIAN IN CARING HANDS, as follows: - the International trademark registration number 1210590 for the word mark KORIAN, registered on February 27, 2014, and covering goods and services in Nice classes 16, 35, 36, 38, 39, 41, 42, 43 and 44; and - the European Union Trade Mark registration number 018229936 for the mark KORIAN IN CARING HANDS with figurative element, filed on April 23, 2020 and registered on September 11, 2020, and covering goods and services in Nice classes 16, 35, 37, 41, 42, 43, 44, and 45. The Complainant received several recognitions and accolades in its industry. Furthermore, in a decision of August 6, 2014, the French Intellectual Property Office stated that the KORIAN trademark was widely known in the field of retirement homes. The Complainant holds domain names incorporating the mark KORIAN, such as The disputed domain name The Complainant contends that the disputed domain name is confusingly similar to its well-known trademark KORIAN and identical to its prior mark KORIAN IN CARING HANDS, the Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent registered and is using the disputed domain name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In view of the absence of a Response, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met: (i) the disputed domain name is 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 the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. The Panel will further analyze the potential concurrence of the above circumstances. A. Identical or Confusingly Similar The Complainant holds rights in the KORIAN trademark. The disputed domain name Numerous UDRP panels have considered that the addition of other terms (whether descriptive, pejorative, meaningless or otherwise) to trademarks in a domain name is not sufficient to escape a finding of confusing similarity. See section 1.8 of theWIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Also, the Complainant uses the baseline “In caring hands” to promote its services and holds rights in the KORIAN IN CARING HANDS mark, which is fully incorporated in the disputed domain name. Further, it is well established in decisions under the UDRP that the generic Top-Level Domain (“gTLD”) (e.g.,“.com”, “.info”, “.org”) may typically be disregarded for the purposes of consideration of confusing similarity between a trademark and a domain name. See section 1.11 of the WIPO Overview 3.0. Given the above, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark KORIAN, and identical to the Complainant’s KORIAN IN CARING HANDS trademark, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests The Complainant asserts that the Respondent does not hold any trademark rights, license or authorization to use the mark KORIAN, that the Respondent is not commonly known by the disputed domain name, and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services. Under the Policy, “where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”. See section 2.1 of theWIPO Overview 3.0. The Respondent has not replied to the Complainant’s contentions and has not come forward with relevant evidence to rebut the Complainant’s prima facie case. At the time of filing the Complaint, the disputed domain name, reproducing the Complainant’s distinctive trademark, was listed for public sale. Registering a domain name knowing that third parties have established rights in the same and offering it for sale are not activities falling under the circumstances listed by paragraph 4(c) of the UDRP as demonstrating the Respondent’s rights or legitimate interests in the disputed domain name, nor an activity from which rights or legitimate interests could arise. For these reasons, the Panel finds that the second element of the Policy is established, and the Respondent has no rights or legitimate interests in respect of the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith The Complainant has held trademark rights in KORIAN since 2003 and has started using the slogan “in caring hands” before the registartion of the disputed domain name. This Panel accepts the Complainant’s evidence that the KORIAN trademark is well known in its business. The disputed domain name was created in 2020 and incorporates the Complainant’s mark in its entirety. Given the fact the mark is well known and distinctive, the Panel finds that it is impossible to believe that the Respondent chose to register the disputed domain name randomly with no knowledge of the mark. In addition, the fact that the disputed domain name was registered on the day following the Complainant’s application for the mark KORIAN IN CARING HANDS is further evidence of targeting and bad faith. For the above, the Panel finds that the disputed domain name was registered in bad faith, knowing the Complainant and targeting its trademark. Paragraph 4(b)(i) of the Policy provides a circumstance of bad faith registration and use when the respondent has acquired the domain name primarily for the purpose of selling or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or to a competitor of that complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name. In the present matter, according to the evidence provided in the Complaint, the disputed domain name was offered for sale for USD 988. The Panel finds that this amount exceeds the out-of-pocket costs directly related to the disputed domain name. The passive attitude of the Respondent who chose not to participate in this procedure and to provide evidence in its defense can be considered as evidence of bad faith (see Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003). Further, it was consistently found by UDRP panels that the mere registration of a domain name that is identical or confusingly similar to a third party’s well-known trademark constitutes, by itself, a presumption of bad faith registration for the purpose of Policy. See section 3.1.4 of the WIPO Overview 3.0. For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith, pursuant to the Policy, paragraph 4(a)(iii). 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 Marilena Comanescu
Sole Panelist
Date: January 12, 2021
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