Complainant is Jung S.A.S, France, represented by AB INITIO, France.
Respondent is harry brown, workers, United States of America (“United States”).
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 12, 2021. On August 13, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 13, 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 August 23, 2021 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 August 24, 2021.
The Center verified that the Complaint and 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 Respondent of the Complaint, and the proceedings commenced on August 27, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 16, 2021. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 20, 2021.
The Center appointed Marina Perraki as the sole panelist in this matter on September 23, 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 BackgroundComplainant is a French company operating a leading online marketplace since 2014 under the name BACK MARKET and providing consumers with access to refurbished or reconditioned electrical and electronic goods, such as smartphones, computers, and televisions, by certified professionals. Complainant maintains its main website at “www.backmarket.com” and is active in different countries around the world.
Complainant owns various trademarks for BACK MARKET, including:
- French trademark registration No. 4135314, BACK MARKET, filed on November 20, 2014 and registered on March 13, 2015 for services in international classes 35, 38, and 41; and
- International trademark registration No. 1415150, BACK MARKET, registered on January 17, 2018 for goods and services in international classes 9, 35, and 37.
Complainant also owns domain name registrations for BACKMARKET, including
The Domain Name was registered on June 26, 2021 and leads to a website mimicking that of Complainant, offering for sale electrical and electronic goods, such as wireless earphones, gaming consoles, mobile phones and smart watches, and prominently displaying Complainant’s trademarks (the “Website”). Per Complaint, it is also probable that the Domain Name is being used for illegitimate purposes, i.e., to scam the public through credit card fraud or data theft. Last, as Complainant demonstrated, the Website’s “FAQ/Support,” “Terms and Conditions”, and “Privacy & Cookies” pages are inaccessible (404 Error).
Complainant attempted to verify the Respondent’s details online, and found no further information on Respondent, on the contrary, it appears that the address provided as registrant detail is inaccurate, as there is no record online of “2491 Bates Brothers Road” or “Bates Brothers Road” in Columbus, Ohio. Per Complainant, efforts were made to reach Respondent through the provided telephone number on August 24, 2021 at 10:10 AM, Paris time. The line continuously rang, but there was no answer.
5. Parties’ Contentions A. ComplainantComplainant asserts that it has established all three elements required under paragraph 4(a) of the Policy for a transfer of the Domain Name.
B. RespondentRespondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsParagraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(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 has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Domain Name incorporates Complainant’s trademark BACK MARKET in its entirety. This is sufficient to establish confusing similarity (Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525).
The addition of the letter “l” after the first letter “b” does not avoid a finding of confusing similarity as the BACK MARKET mark remains recognizable within the Domain Name (Express Scripts, Inc. v. Whois Privacy Protection Service, Inc. / Domaindeals, Domain Administrator,WIPO Case No. D2008-1302; mytheresa.com GmbH v. Domain Admin Private Registrations Aktien Gesellschaft,WIPO Case No. D2013-0904, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), sections 1.8 and 1.9).
The generic Top-Level Domain (“gTLD”) “.cheap” is disregarded, as gTLDs typically do not form part of the comparison on the grounds that they are required for technical reasons (Rexel Developpements SAS v. Zhan Yequn,WIPO Case No. D2017-0275; Hay & Robertson International Licensing AG v. C. J. Lovik,WIPO Case No. D2002-0122).
The Panel finds that the Domain Name is confusingly similar to the BACK MARKET mark of Complainant.
Complainant has established Policy, paragraph 4(a)(i).
B. Rights or Legitimate InterestsPursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are 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 Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name.
Respondent has not submitted any response and has not claimed any such rights or legitimate interests with respect to the Domain Name. As per Complainant, Respondent was not authorized to register the Domain Name.
Prior to the notice of the dispute, Respondent did not demonstrate any use of the Domain Name or a trademark corresponding to the Domain Name in connection with a bona fide offering of goods or services.
On the contrary, as Complainant demonstrated, the Domain Name directed to the Website, mimicking Complainant’s main website. Per Complaint, it is also probable that the Domain Name is being used for illegitimate purposes, i.e., to scam the public through credit card fraud or data theft. Last, as Complainant demonstrated, the Website’s “FAQ/Support,” “Terms and Conditions”, and “Privacy & Cookies” pages are inaccessible (404 Error).
Use of a domain name for illegal activity (e.g., phishing) can never confer rights or legitimate interests on a respondent (WIPO Overview 3.0, section 2.13.1).
The Panel finds that these circumstances do not confer upon Respondent any rights or legitimate interests in respect of the Domain Name.
Complainant has established Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Name in bad faith:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith.
Because the BACK MARKET mark had been used and registered at the time of the Domain Name registration by Respondent, noting also the composition of the Domain Name, which clearly shows knowledge of Complainant and its field of activity, along with the fact that Complainant operates the website “www.backmarket.com”, the Panel finds likely that Respondent had Complainant’s mark in mind when registering the Domain Name (Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net,WIPO Case No. D2000-0226).
The Domain Name was therefore probably created for commercial gain by intentionally creating a likelihood of confusion with Complainant’s trademarks and business as to the source, sponsorship, affiliation or endorsement of the website it resolved to, within the sense of paragraph 4(b)(iv) of the Policy. This can be used in support of bad faith registration and use (WIPO Overview 3.0, section 3.1.3).
As regards bad faith use, Complainant demonstrated that Respondent used the Domain Name to host the Website, mimicking Complainant’s main website, offering identical activity and prominently displaying Complainant’s trademarks. Respondent therefore registered and used the Domain Name to take advantage of likely confusion with Complainant.
Furthermore, per Complaint, it is also probable that the Domain Name is being used for illegitimate purposes, i.e., to scam the public through credit card fraud or data theft. Last, as Complainant demonstrated, the Website’s “FAQ/Support,” “Terms and Conditions”, and “Privacy & Cookies” pages are inaccessible (404 Error). Complainant attempted to verify the Respondent’s details online, and found no further information on Respondent, on the contrary, it appears that the address provided is inaccurate, as there is no record online of “2491 Bates Brothers Road” or “Bates Brothers Road” in Columbus, Ohio. Per Complainant, efforts were made to reach Respondent through the provided telephone number on August 24, 2021 at 10:10 AM, Paris time. The line continuously rang, but there was no answer.
Use of a domain name for purposes such as phishing, if the allegations are accepted as true, constitutes bad faith use (WIPO Overview 3.0, section 3.4) and further evidences bad faith (Andrey Ternovskiy dba Chatroulette v. Transfer Service, Sedo.com, LLC,WIPO Case No. D2018-2510).
Under these circumstances and on this record, the Panel finds that Respondent has registered and used the Domain Name in bad faith.
Complainant has established Policy paragraph 4(a)(iii).
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name
Marina Perraki
Sole Panelist
Date: October 7, 2021