Complainant is Vente-Privee.Com, France, represented by Cabinet Degret, France.
Respondent is Tang Tang Shang, Tang Shan, 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 May 3, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 4, 2021, 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 Complainant on May 5, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on May 5, 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 Respondent of the Complaint, and the proceedings commenced on May 6, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 26, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 28, 2021. The Center appointed Kimberley Chen Nobles as the sole panelist in this matter on June 3, 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 Complainant is a leading e-commerce company incorporated in France. It operates under the trademarks VENTE-PRIVEE and VEEPEE. Complainant has operated the Vente-Privee website, a shopping club for 20 years. At the beginning of 2019, Complainant started to rebrand itself under the VEEPEE mark. Complainant is the owner of numerous trademark registrations in jurisdictions worldwide, including: - European Union registration No. 11.991.965 for VENTE-PRIVEE, with a registration date of January 3, 2014; - European Union registration number 17.442.245 for VEEPEE registered on March 29, 2018; and - International Trademark number 1.409.721 for VEEPEE registered on November 8, 2018. Complainant also operates its business under the website “www.veepee.com”. The turnover Complainant has achieved since its rebranding in January 2019 amounts to almost EUR 4 billion. Respondent registered the Domain Name on December 29, 2020. At the time of the filing of the Complaint, the Domain Name resolved to a page with advertising links to pornographic websites. At the time of the Decision, the Domain Name is inactive and resolved to an error page. 5. Parties’ Contentions A. Complainant Complainant contends that (i) the Domain Name is identical or confusingly similar to Complainant’s trademarks; (ii) Respondent has no rights or legitimate interests in the Domain Name; and (iii) Respondent registered and is using the Domain Name in bad faith. In particular, Complainant contends that it has trademark registrations for the VEEPEE marks and owns a domain name incorporating the VEEPEE mark. Complainant contends that Respondent registered and is using the Domain Name, to confuse Internet users looking for bona fide and well-known VEEPEE products and services. Complainant notes that it has no affiliation with Respondent, nor authorized Respondent to register or use a domain name, which includes Complainant’s mark, and that Respondent has no rights or legitimate interests in the registration and use of the Domain Name. Rather, Complainant contends that Respondent has acted in bad faith in acquiring and setting up the Domain Name, when Respondent clearly knew of Complainant’s rights. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name was registered and is being used in bad faith. Section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states: “Does a respondent’s default/failure to respond to the complainant’s contentions automatically result in the complaint succeeding? Thus, although in this case, Respondent has failed to respond to the Complaint, the burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. See, e.g., The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. A. Identical or Confusingly Similar Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. See WIPO Overview 3.0, section 1.2.1. Complainant provided evidence of its rights in the VEEPEE marks, which have been registered since at least as early as March 2018, well before Respondent registered the Domain Name on December 29, 2020 as noted above. Complainant has also submitted evidence, which supports that VEEPEE is a widely known trademark and a distinctive identifier of Complainant’s products and services. Complainant has therefore proven that it has the requisite rights in the VEEPEE marks. With Complainant’s rights in the VEEPEE marks established, the remaining question under the first element of the Policy is whether the Domain Name, typically disregarding the Top-Level Domain (“TLD”) in which it is registered (in this case, “.com”), is identical or confusingly similar to Complainant’s mark. See, e.g., B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross,WIPO Case No. D2010-0842. Here, the Domain Name is confusingly similar to Complainant’s VEEPEE marks. These marks, which are fanciful and inherently distinctive, are recognizable in the Domain Name. The complete incorporation of the VEEPEE mark and the voluntary addition of the number “1” in the Domain Name does not prevent a finding of confusing similarity between Complainant’s trademarks and the Domain Name registered by Respondent. Thus, the Panel finds that Complainant has satisfied the first element of the Policy. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, a complainant must make at least a prima facie showing that a respondent possesses no rights or legitimate interests in a disputed domain name. See, e.g., Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once a complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP. From the record in this case, the Panel finds that Respondent knew, or should have known, of Complainant and the VEEPEE marks, and does not have any rights or legitimate interests in the Domain Name. Complainant has confirmed that Respondent is not affiliated with Complainant, or otherwise authorized or licensed to use the VEEPEE trademarks or to seek registration of any domain name incorporating the trademarks. Respondent is also not known to be associated with or commonly known by the VEEPEE marks. In addition, Respondent has not used the Domain Name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the evidence demonstrates that at the time of the filing of the Complaint, the Domain Name resolved to a page with advertising links to pornographic websites. At the time of the Decision, the Domain Name resolved to an error page. Such use does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use and cannot under the circumstances confer on Respondent any rights or legitimate interests in the Domain Name. See, e.g., Intesa Sanpaolo S.p.A. v. Charles Duke / Oneandone Private Registration,WIPO Case No. D2013-0875. Moreover, there is no evidence showing that Respondent has been commonly known by the Domain Name. Further, the nature of the Domain Name carries a risk of implied affiliation with Complainant (see WIPO Overview 3.0, section 2.5.1). Accordingly, Complainant has provided evidence supporting its prima facie claim that Respondent lacks any rights or legitimate interests in the Domain Name. Respondent has failed to produce countervailing evidence of any rights or legitimate interests in the Domain Name. Thus, the Panel concludes that Respondent does not have any rights or legitimate interests in the Domain Name and Complainant has met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel finds that Respondent’s actions indicate that Respondent registered and is using the Domain Name in bad faith. Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances indicating bad faith registration and use on the part of a domain name registrant, namely: “(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or (ii) you have 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 you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.” The Panel finds that Complainant provided ample evidence to show that registration and use of the VEEPEE marks predate the registration of the Domain Name by Respondent. Complainant is also well established and known. Indeed, the record shows that Complainant’s VEEPEE marks and related services are widely known and recognized. Further, the Domain Name incorporates Complainant’s VEEPEE mark in its entirety, which suggests Respondent’s knowledge of Complainant’s rights in the VEEPEE mark at the time of registration of the Domain Name and its effort to opportunistically capitalize on the registration and use of the Domain Name. The Panel therefore finds that Respondent knew, or should have known, that the registration of the Domain Name would be confusingly similar to Complainant’s VEEPEE mark, which suggests bad faith. See WIPO Overview 3.0, section 3.2.2. See also Red Bull GmbH v. Credit du Léman SA, Jean-Denis Deletraz,WIPO Case No. D2011-2209; Nintendo of America Inc v. Marco Beijen, Beijen Consulting, Pokemon Fan Clubs Org., and Pokemon Fans Unite,WIPO Case No. D2001-1070; and BellSouth Intellectual Property Corporation v. Serena, Axel,WIPO Case No. D2006-0007). Moreover, Respondent registered and is using the Domain Name to confuse and mislead consumers looking for bona fide and well-known VEEPEE products and services of Complainant or authorized partners of Complainant. The use of the VEEPEE mark as the dominant part of the Domain Name is intended to capture Internet traffic from Internet users who are looking for Complainant’s products and services. Such use and association of the Domain Name to divert users to advertising links to pornographic websites could result in causing confusion with Complainant’s business and activities. It may confuse Internet users who are looking for Complainant’s legitimate website and deceive Internet users into thinking that Respondent is somehow connected to Complainant, which is not the case. The fact that at the time of the Decision the Domain Name is inactive and resolved to an error page does not prevent a finding of bad faith. In addition to the circumstances referred to above, Respondent appears to have provided incorrect/false or incomplete information in its registration information. Respondent’s failure to file a response is further indicative of Respondent’s bad faith. Accordingly, the Panel finds that Respondent has registered and is using the Domain Name in bad faith and Complainant succeeds under the third element of paragraph 4(a) 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 Kimberley Chen Nobles
Noting the burden of proof on the complainant, a respondent’s default (i.e., failure to submit a formal response) would not by itself mean that the complainant is deemed to have prevailed: a respondent’s default is not necessarily an admission that the complainant’s claims are true.”
Sole Panelist
Date: June 7, 2021
Full & Egal Universal Law Academy