The Complainants are Vente-privee.com, France, and Vente-privee.com IP S.à.r.l., Luxembourg, represented by Cabinet Degret, France.
The Respondent is wangdan, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 30, 2021. On April 30, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 8, 2021, 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 Complainants on May 11, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amendment to the Complaint on May 17, 2021. 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 May 18, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 7, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 10, 2021. The Center appointed William R. Towns as the sole panelist in this matter on June 18, 2021. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background The Complainants are Vente-privee.com, a joint stock company with board of directors organized under the laws of France, and Vente-privee.com IP S.à.r.l., a limited liability company organized under the laws of Luxembourg, and a wholly owned subsidiary of Vente-privee.com. The Complainants for some 20 years have owned and operated the “vente-privee.com” website in connection with the organization of “invitation only” e-commerce “event sales” offering discounted products and services to its members. Many of the discounted products and services sold in these “event sales” – such as fashion articles, food, travel and entertainment – include well-known trademarks. The Complainants are the owners of VENTE-PRIVEE and VENTE-PRIVEE.COM trademarks (collectively the “VENTE-PRIVEE Marks”), registered in the following jurisdictions: VENTE-PRIVEE.COM, French Trademark Reg. No. 3318310, applied for and registered October 14, 2004; VENTE-PRIVEE.COM, European Union Trade Mark (EUTM) Reg. No. 005413018, applied for October 24, 2006, and registered December 20, 2007; and VENTE-PRIVEE, International Trademark Reg. No. 1116436, date of registration February 23, 2012 (designating multiple jurisdictions including China). The Complainants registered the domain name The Complainants’ “event sales” have proven highly successful over the years, and UDRP panels have recognized in prior cases under the Policy that the Complainants’ VENTE-PRIVEE Marks are well-known. See, e.g., Vente-privee.com, Vente-privee.com IP S.à.r.l. v. Whois Privacy Services Pty Ltd. / Dzone Inc., Yeonju Hong,WIPO Case No. D2013-0691 (the Complainants’ VENTE-PRIVEE and VENTE-PRIVEE.COM marks are “well-known”) (“des marques bien connues des requérants”); Vente-privee.com, Vente-privee.com IP S.à.r.l. v. XL Liu,WIPO Case No. D2015-2166, (the respondent almost certainly aware of the VENTE-PRIVEE and VENTE-PRIVEE.COM marks because of their “fame”) (“compte tenu de leur notoriété”); Vente-privee.com, Vente-privee.com IP S.à.r.l. v. Contact Privacy Inc. Customer 0145729438 / Milen Radumil,WIPO Case No. D2017-1918, (the UDRP panel found it highly improbable that the respondent was ignorant of the Complainants’ marks, since they were “famous and widely used for more than a decade”) (“notoires et largement utilisées depuis plus d’une décennie”). See also Vente-Privee.com and Vente-privee.com IP S.à.r.l. v. Dexter Atlan / Webmaster,WIPO Case No. D2018-1221. The Respondent registered the disputed domain name The Complainants submit that the disputed domain name is confusingly similar to the Complainants’ VENTE-PRIVEE Marks, an obvious misspelling of the Complainants’ French VENTRE-PRIVEE mark, and constitutes typosquatting. The Complainants note that the Top-Level-Domain (TLD) “.com” is not taken into account when assessing the confusing similarity of the disputed domain name to the Complainants’ marks. The Complainants assert that the Respondent has no rights or legitimate interests in respect of the disputed domain name. According to the Complainants, the Respondent has not been licensed or otherwise authorized to register or use the disputed domain name. The Complainants add that the disputed domain name was not registered by the Respondent until January 7, 2021, well after the Complainants initially registered the VENTE-PRIVEE.COM mark in 2004, and the VENTE-PRIVEE mark in 2012. The Complainants remark that the Respondent has not been commonly known by the disputed domain name, and that the Respondent has neither used or made demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. To the contrary, according to the Complainants, the disputed domain name is being redirected to a parking page advertising pornography. The Complainants maintain it is well-known that websites of this nature may contain software viruses that install spyware or malware. The Complainants further submit that the Respondent registered and is using the disputed domain name in bad faith. The Complainants call attention to an earlier UDRP decision in Vente-privee.com, Vente-privee.com IP S.à.r.l. contre Contact Privacy Inc. Customer 0145729438 / Milen Radumilo,WIPO Case No. D2017-1918, wherein it was held that the domain name The Respondent did not reply to the Complainants’ contentions. 6. Discussion and Findings A. Scope of the Policy The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store,WIPO Case No. D2002-0774. Accordingly, the jurisdiction of this Panel is limited to providing a remedy in cases of “the abusive registration of domain names”, also known as “cybersquatting”. Weber-Stephen Products Co. v. Armitage Hardware,WIPO Case No. D2000-0187. See Final Report of the First WIPO Internet Domain Name Process, April 30, 1999, paragraphs 169-177. The term “cybersquatting” is most frequently used to describe the deliberate, bad faith abusive registration of a domain name in violation of rights in trademarks or service marks. Id. at paragraph 170. Paragraph 15(a) of the Rules provides that the panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the panel deems applicable. Paragraph 4(a) of the Policy requires that the complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred: (i) the 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 with respect to the domain name; and (iii) the domain name has been registered and is being used in bad faith. Cancellation or transfer of the domain name is the sole remedy provided to the complainant under the Policy, as set forth in paragraph 4(i). Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a domain name is deemed to be in bad faith, but does not limit a finding of bad faith to only these situations. Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in a domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily, if not exclusively, within the knowledge of the respondent. Thus, the view is that the burden of production shifts to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270. B. Identical or Confusingly Similar The Panel finds that the disputed domain name is confusingly similar to the Complainants’ VENTE-PRIVEE Marks , in which the Complainants have established rights through registration and use. In considering identity and confusing similarity, the first element of the Policy serves essentially as a standing requirement.1 The threshold inquiry under the first element of the Policy involves a relatively straightforward comparison between the Complainants’ trademark and the disputed domain name. The Complainants’ VENTE-PRIVEE Marks are recognizable in the disputed domain name.2 The Respondent’s omission of the initial letter “v” in the disputed domain name reflects typosquatting, and the omission in the disputed domain name of a hyphen (“-”) between “ente” and “privee” does not prevent a finding of confusing similarity. When at least a dominant feature of the relevant trademark is recognizable in the disputed domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.3 Furthermore, a domain name which consists of a common, obvious, or intentional misspelling of a trademark (such as the omission of the initial letter “v” here) is considered by UDRP panels to be confusingly similar to the relevant mark for purposes of the first element.4 TLDs generally are disregarded when evaluating the identity or confusing similarity of the Complainants’ marks to the disputed domain name under paragraph 4(a)(i) of the Policy, irrespective of any ordinary meaning that might be ascribed to the TLD.5 Accordingly, the Panel finds the Complainants have satisfied the requirements of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests As noted above, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, paragraph 4(c) shifts the burden of production to the respondent to come forward with evidence of rights or legitimate interests in a domain name. The Panel is persuaded from the record of this case that a prima facie showing under paragraph 4(a)(ii) of the Policy has been made. It is undisputed that the Respondent has not been authorized to use the Complainants’ VENTE-PRIVEE Marks. The record nonetheless reflects the Respondent’s registration and use of the disputed domain name with a website displaying sexually suggestive and arguably pornographic images and gambling ads. Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights or legitimate interests in a domain name by demonstrating any of the following: (i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or (ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The Respondent has not submitted a response to the Complaint, in the absence of which the Panel may accept all reasonable inferences and allegations in the Complaint as true. See Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009. The Panel has carefully reviewed the record in this case, and finds nothing therein that would bring the Respondent’s registration and use of the disputed domain name within any of the “safe harbors” of paragraph 4(c) of the Policy. It is apparent from the record that the Respondent was aware of the Complainants and the Complainants’ VENTE-PRIVEE Marks when registering the disputed domain name. The record clearly establishes that the Respondent registered the disputed domain name with the aim of exploiting and profiting from the Complainants’ marks, using the disputed domain name to redirect Internet users to a website featuring suggestive and arguably pornographic images and gambling ads. The use of a domain name for illegal activity (e.g.,phishing, impersonation, or other types of fraud) can never confer rights or legitimate interests on a respondent. See WIPO Overview 3.0, section 2.13 and cases cited therein. Having regard to all of the relevant circumstances in this case, and in the absence of any explanation by the Respondent, the Panel concludes that the Respondent has not used or demonstrated preparations to use the disputed domain name in connection with a bona fide offering of goods or services, and that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. To the contrary, the Respondent in the Panel’s opinion intentionally has redirected the disputed domain name to a website featuring suggestive and arguably pornographic images and gambling ads. Further, there is no indication in the record that the Respondent has been commonly known by the disputed domain name within the meaning of paragraph 4(c)(ii) of the Policy. In short, nothing in the record before the Panel supports a finding of the Respondent’s rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds the Complainants have satisfied the requirements of paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or (ii) circumstances indicating that the respondent registered the domain name in order to prevent the owner of the trademark 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) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) circumstances indicating that the respondent is using the domain name to intentionally attempt 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 its website or location. The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from and exploit the trademark of another. See Match.com, LP v. Bill Zag and NWLAWS.ORG,WIPO Case No. D2004-0230. For the reasons discussed under this and the preceding heading, the Panel considers that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain name within the meaning of paragraph 4(a)(iii) of the Policy. The Panel concludes that the Respondent had the Complainants’ VENTE-PRIVEE Marks firmly in mind when registering the disputed domain name. The Respondent’s registration and use of the disputed domain name as reflected in the record of this case is clearly demonstrative of bad faith. Accordingly, the Panel finds that the Complainants have satisfied the requirements of 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 William R. Towns 1 See WIPO Overview 3.0 , section 1.7 . 2 Id. 3 See WIPO Overview 3.0, section 1.7 and cases cited therein. 4 See WIPO Overview 3.0, section 1.9 and cases cited therein. 5 See WIPO Overview 3.0 , section 1.11.2 and cases cited therein.
Sole Panelist
Date: July 4, 2021
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