The Complainant is Fleurance Nature, France, represented by Cabinet Beau de Lomenie, France.
The Respondent is Du Peng (杜鹏), China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 27, 2021. On July 28, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 29, 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 August 1, 2021, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On August 9, 2021, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 in English and Chinese of the Complaint, and the proceedings commenced on August 16, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 5, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 19, 2021.
The Center appointed Joseph Simone as the sole panelist in this matter on September 22, 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 BackgroundThe Complainant, Fleurance Nature, is a leading company in the cosmetics and nutritional supplements industries.
The Complainant has an extensive global portfolio of trade marks containing the term “Fleurance”, including the following:
- International Trade Mark Registration for FLEURANCE NATURE No. 1158022 in Classes 3, 5, 16, 29, 30, 32 and 35, extended to China and a number of other jurisdictions, registered on December 17, 2012;
- French Trade Mark Registration for AUX PRODUITS DE FLEURANCE No. 1223530 in Classes 3 and 29, registered on January 3, 1983.
The Complainant owns the domain name
The disputed domain name was registered on May 17, 2021.
According to screenshots provided by the Complainant, at the time of filing the Complaint, the disputed domain name resolved to a seemingly gambling-related website. At the time of this Decision, the linked webpage indicates “Network Error”.
5. Parties’ Contentions A. ComplainantThe Complainant asserts that it has prior rights in the FLEURANCE trade marks and that it is a leading player in its fields of business.
The Complainant further asserts that the disputed domain name is identical or confusingly similar to the Complainant’s FLEURANCE trade marks, and the addition of the term “produits” (which means “product” in French) does not affect the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant’s trade marks.
The Complainant also asserts that it has not authorized the Respondent to use the FLEURANCE mark and/or the FLEURANCE name, and there is no evidence to suggest that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services.
The Complainant further asserts that there is no evidence suggesting that the Respondent has any connection to the FLEURANCE mark in any way, and that there is no plausible good faith reason for the Respondent to have registered the disputed domain name, especially after considering the relevant circumstances. The Complainant therefore concludes that the registration and any use of the disputed domain name whatsoever must be in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Language of the ProceedingIn accordance with paragraph 11(a) of the Rules:
“[…] the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
In this case, the language of the Registration Agreement for the disputed domain name is Chinese. Hence, the default language of the proceeding should be Chinese.
However, the Complainant filed the Complaint in English, and requested that English be the language of the proceeding, asserting inter alia that the Complainant is of French nationality, and the costs of the proceedings would therefore impose a burden on the Complainant if the proceedings were to be conducted in Chinese, as the Complainant would have to retain specialized translation services for these proceedings.
The Respondent was notified in both Chinese and English of the language of the proceeding and the Complaint and did not comment on the language of the proceeding or submit any response on the merits of these proceedings.
The Panel has also considered the fact that the disputed domain name is in English and written in Latin letters and not in Chinese characters, and the fact that adopting Chinese as the language of these proceedings could lead to unwarranted delays and costs for the Complainant.
Considering the circumstances in this case, the Panel has determined that the language of the proceeding shall be English, and the Panel has issued this decision in English. The Panel further finds that such determination would not cause any prejudice to either Party and would ensure that the proceeding takes place with due expedition.
B. Identical or Confusingly SimilarThe Panel acknowledges that the Complainant has established rights in the FLEURANCE NATURE and AUX PRODUITS DE FLEURANCE trade marks in many territories around the world.
Disregarding the generic Top-Level Domain (“gTLD”) “.com”, the disputed domain name incorporates “FLEURANCE” - a dominant feature of the Complainant’s trade mark FLEURANCE NATURE – in its entirety. The Panel further notes that the addition of the French term “produits”, which means “product” in French, does not prevent a finding of confusing similarity.
Moreover, disregarding the gTLD “.com”, the disputed domain name incorporates “PRODUITS” and “FLEURANCE” - two dominant features of the Complainant’s trade mark AUX PRODUITS DE FLEURANCE – in their entirety.
The Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in the FLEURANCE NATURE and AUX PRODUITS DE FLEURANCE trade marks and in demonstrating that the disputed domain name is identical or confusingly similar to its marks.
C. Rights or Legitimate InterestsPursuant to paragraph 4(c) of the Policy, the complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, the respondent carries the burden of producing evidence in support of its rights or legitimate interests in the disputed domain name. If the respondent fails to do so, the complainant may be deemed to have satisfied paragraph 4(a)(ii) of the Policy. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
The Complainant asserts that it has not authorized the Respondent to use its trade mark and there is no evidence to suggest that the Respondent has used, or undertaken any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services.
Thus, the Complainant has established its prima facie case with satisfactory evidence.
The Respondent did not file a response and has therefore failed to assert factors or put forth evidence to establish that it enjoys rights or legitimate interests in the disputed domain name. As such, the Panel concludes that the Respondent has failed to rebut the Complainant’s prima facie showing of the Respondent’s lack of rights or legitimate interests in the disputed domain name, and that none of the circumstances of paragraph 4(c) of the Policy is applicable in this case.
As previously noted above, the disputed domain name incorporates dominant features of the Complainant’s FLEURANCE NATURE and AUX PRODUITS DE FLEURANCE trade marks. Such composition carries a risk of implied affiliation and cannot constitute fair use as it effectively impersonates or suggests sponsorship or endorsement by the Complainant. See WIPO Overview 3.0, section 2.5.1.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy.
D. Registered and Used in Bad FaithParagraph 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 trade mark 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 to prevent the owner of the trade mark 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 in which 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 trade mark of another party. 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 believes 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(b)(iv) of the Policy.
When the Respondent registered the disputed domain name in May 2021, the FLEURANCE NATURE and AUX PRODUITS DE FLEURANCE trade marks were already widely known and directly associated with the Complainant’s activities.
Given the extensive prior use and fame of these marks and the similarity between the disputed domain name and these marks, in the Panel’s view, the Respondent should have been aware of the Complainant’s marks when registering the disputed domain name.
The Respondent has provided no evidence to justify his registration of the disputed domain name. Given the foregoing, it would be unreasonable to conclude that the Respondent – at the time of the registration of the disputed domain name – was unaware of the Complainant’s trade marks, or that the incorporation of dominant features of the Complainant’s FLEURANCE NATURE and AUX PRODUITS DE FLEURANCE, was a mere coincidence.
The Panel is therefore of the view that the Respondent registered the disputed domain name with full knowledge of the Complainant’s trade mark rights, a finding which is reinforced considering the addition of the French word “produits” that illustrates the intention of the Respondent to target the Complainant.
Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith pursuant to paragraph 4(b)(iv) of the Policy. The fact that the disputed domain name currently links to a webpage indicating “Network Error” does not prevent a finding of bad faith.
7. DecisionFor 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
Joseph Simone
Sole Panelist
Date: October 6, 2021