The Complainant is Deezer, France, represented by Domgate, France.
The Respondent is Bichevaya Polina Vladimirovna, the Russian Federation. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on April 2, 2021. On April 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 7, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On April 7, 2021, the Center sent an email to the Parties both in English and Russian regarding the language of the proceedings. On April 15, 2021, the Complainant requested that English be the language of the proceedings. The Respondent did not provided any comments regarding the language of the Proceedings. The Center verified that 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 in both English and Russian and the proceedings commenced on April 21, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 11, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default in both English and Russian on May 12, 2021. The Center appointed Oleksiy Stolyarenko as the sole panelist in this matter on May 20, 2021. 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 well-known online music streaming service operating under the name Deezer that was launched in 2007 in France. At the moment, the Complainant’s service is available through the web browser, desktop applications, phone applications, and even through gaming console applications. The Complainant offers 56 million licensed tracks in its library, has 15 million monthly active users, and had 7 million paid subscribers as of January 2019. The Complainant’s service is available in more than 180 countries. In 2011, the Complainant extended its service to the Russian Federation and launched its Russian language version. The Complainant registered several DEEZER trademarks throughout the world including: - International Registration for DEEZER and design No. 1024994 registered on October 9, 2009, for the goods and services in classes 35, 38 and 41, designations include the Russian Federation; The Complainant is also registered in the Trademark Clearinghouse. The Complainant is the owner the domain name The Russian version of the Complainant’s website is accessible on “www.deezer.com/ru”. The Respondent appears to be a Russian individual. According to the WhoIs, the disputed domain name was registered in the name of the Respondent on March 15, 2021. The website under the disputed domain name is currently inactive. However, based on the information provided by the Complainant the disputed domain name redirected to the Complainant’s website “www.deezer.com”. Furthermore, based on the screenshots provided by the Complainant on March 29, 2021 the website under the disputed domain name also displayed text: “Domain cost”: USD 1000”, which could be interpreted as a proposed price for the domain. name Prior to the filing of the dispute, the Complainant and the Respondent exchanged the pre-complaint correspondence. 5. Parties’ Contentions A. Complainant The Complainant is a well-known online music streaming service operating on more than 180 markets globally from 2007. The Complainant‘s corporate name, trade name, trademarks and domain names throughout the world contain designation DEEZER. The Complainant has acquired rights on DEEZER trademarks in many jurisdictions throughout the world including in the Russian Federation. The trademark itself is an invented, fantasy mark, and is inherently distinctive. The Complainant’s music service is popular in Russian Federation and has its Russian language page since 2011. The Complainant’s trademark acquired protection significantly prior to registration of the disputed domain name. The disputed domain name consists of the Complainant’s trademark DEEZER and followed by the generic Top Level Domain (“gTLD”) “.world”. The disputed domain name is identical to the Complainant’s trademarks, domain names, websites and company name. The “.world” gTLD should be disregarded during the confusing similarity analysis, because it is a functional element, and it can be considered as highly descriptive considering the Complainant’s worldwide activities. The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not authorized the Respondent to use the trademark DEEZER in the disputed domain name. The Respondent is not commonly known by the disputed domain name and the unauthorized redirection by the Respondent of the disputed domain name to Complainant’s official website does not serve as prove of the Respondent’s rights or legitimate interests in connection to the disputed domain name. The Respondent was fully aware of the Complainant’s reputation and the Complainant’s trademark rights on the DEEZER trademark when he registered of the disputed domain name. Furthermore, the Respondent’s attempts to sell the disputed domain name to the Complainant confirm the Respondent’s bad faith. The intention of the Respondent was to take advantage of the well-known DEEZER trademark and to sell the disputed domain name to the Complainant who is the owner of the DEEZER trademark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s out-of-pocket costs. Therefore, the Respondent acted in bad faith. The Complainant seeks a decision that the domain name be transferred to the Complainant. B. Respondent The Respondent did not formally reply to the Complainant’s contentions. Provided by the Complainant a copy of the pre-compliant communications with the Respondent suggests that the Respondent offered the disputed domain name for sale. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has proved its rights in the DEEZER trademarks through the EU trademarks and international registrations designating numerous countries worldwide including Russian Federation. Therefore, the Panel considers that the Complainant has satisfied the threshold requirement of having relevant trademark rights. Furthermore, the Panel considers that the disputed domain name is identical to the Complainant’s DEEZER trademarks. The Panel notes that disputed domain name Therefore, the Panel disregards the gTLD suffix for the purposes of this comparison. For all the foregoing reasons, the Panel finds that the first element of paragraph 4(a) of the Policy has therefore been satisfied by the Complainant. B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy requires the complainant to establish that the respondent has no rights or legitimate interests in the domain name. Once the Complainant establishes a prima facie case against the Respondent under this ground, the burden of production shifts to the Respondent to rebut it. See section 2.1 of the WIPO Overview 3.0. In this case, the Respondent did not rebut the Complainant’s prima facie case regarding the lack of rights or legitimate interests. However, the overall burden of proof remains with the Complainant. Paragraph 4(c) of the Policy provides circumstances that demonstrate the Respondent’s rights or legitimate interests to the disputed domain name, and that complainants frequently address to show that the activities of the Respondent does not fall under the bona fide offering of goods or services (paragraph 4(c)(i) of the Policy), that the Respondent is not commonly known by the disputed domain name (paragraph 4(c)(ii) of the Policy) and that the Respondent is not involved into a legitimate noncommercial or fair use of the disputed domain name (paragraph 4(c)(iii) of the Policy). The Panel finds that because the disputed domain name According to the Complainant, the Respondent is not an authorized or licensed to use DEEZER trademark in the disputed domain name, as well as not authorized for redirecting the Internet users through the disputed domain name to the official domain name and website of the Complainant. The fact that the disputed domain name was used by the Respondent for redirection to the official domain name and website of the Complainant confirms that the Respondent was well aware that DEEZER is a trademark of the Complainant. The Panel notes, that as it was found by the previous UDRP panels that unauthorized redirection to Complainant’s website does not serve as evidence of rights or legitimate interests. Carrefour v. WhoisGuard, Inc., WhoisGuard Protected / Robert Jurek, Katrin Kafut, Purchasing clerk, Starship Tapes & Records,WIPO Case No. D2017-2533. Previous UDRP panels found that in certain cases the respondents can be involved in the bona fide activities when aggregating and holding even for resale domain names that constitute dictionary words or common phrases. The Panel concludes that this is not the case here, because the trademark DEEZER is an invented word with no dictionary meaning in English or Russian languages. Therefore, the Panel also finds that the Respondent is not involved in a bona fide bona fide offering of goods or services (under paragraph 4(c)(i) of the Policy) and Respondent’s activities does not fall under a legitimate noncommercial use (under paragraph 4(c)(iii) of the Policy). According to the Registrar’s information, “Bichevaya Polina Vladimirovna” is the registrant of the disputed domain name. The Panel did not found any evidence that the Respondent is commonly known by the disputed domain name Thus, the Panel finds that the Complainant has satisfied the second element of the Policy, namely paragraph 4(a)(ii). C. Registered and Used in Bad Faith As the Panel established above, the Complainant’s DEEZER trademark is distinctive and well-known globally. The Complainant provides services in many countries around the world, including in the country of the Respondent. The Complainant has a website that is translated into Russian among many other languages and the Complainant invested in popularization of its brand and service in many countries, including Russian Federation. The Panel notes that the Complainant’s marks for DEEZER were registered prior to the registration of the disputed domain name, and the Respondent, through the nature of the activities with the disputed domain name was aware that such registration abuses the Complainant’s trademark rights. The Responded failed to submit a response or provide any evidence of a good-faith use or to show rights or legitimate interests in the disputed domain name. The Panel finds that the Respondent’s unsolicited offer in response to a cease and desist letter of the Complainant to sell the disputed domain name for USD 10,000 for valuable consideration in excess of the Respondent’s documented out-of-pocket costs, amounts to bad faith. See OLX, B.V. v. Abdul Ahad / Domains By Proxy, LLC,WIPO Case No. D2015-0271 Thus, the Panel concludes that the Respondent has registered the domain name primarily for the purpose of selling to the Complainant who is the owner of the trademark for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name as described under paragraph 4(b)(i) of the Policy. Furthermore, the Panel finds it implausible that the disputed domain name could be use by the Respondent in good faith considering that it is identical to the Complainant’s trademark. Therefore, under the totality of the circumstances, the Panel finds the Respondent registered and used the disputed domain name in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, 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 disputed domain name Oleksiy Stolyarenko
- International Registration for DEEZER and design No. 1498366 registered on May 3, 2010, for the goods and services in classes 35, 38 and 41, designations include the Russian Federation;
- European Union (“EU”) Trademark for DEEZER No. 008650079 registered in May 3, 2010, for the goods and services in classes 35, 38 and 41.
Sole Panelist
Date: June 15, 2021
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