The Complainant is Juliette Has a Gun, France, represented by Inlex IP Expertise, France.
The Respondent is Registration Private, Domains By Proxy, LLC, United States of America / Carolina Rodrigues, Fundacion Comercio Electronico, Panama.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 24, 2021. On August 25, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 25, 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 Complainant on August 26, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on August 26, 2021.
The Center verified that the Complaint together with 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 the Respondent of the Complaint, and the proceedings commenced on September 1, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 21, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 22, 2021.
The Center appointed Edoardo Fano as the sole panelist in this matter on September 30, 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.
The Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the Parties.
Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), “to employ reasonably available means calculated to achieve actual notice to the Respondent”. Therefore, the Panel shall issue its Decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of a response from the Respondent.
4. Factual BackgroundThe Complainant is Juliette Has a Gun, a French company operating in the field of perfumes, and having rights over several trademark registrations for JULIETTE HAS A GUN,1 including the following ones:
- French Trademark Registration No. 3411781 for JULIETTE HAS A GUN, registered on
February 22, 2006;
- International Trademark Registration No. 898178 for JULIETTE HAS A GUN, registered on
August 21, 2006; and,
- Canadian Trademark Registration No. TMA930418 for JULIETTE HAS A GUN, registered on
March 2, 2016.
The Complainant also operates on the Internet at the website “www.juliettehasagun.com”.
The Complainant provided evidence in support of the above.
The disputed domain name
The Complainant states that the disputed domain name is confusingly similar to its trademark JULIETTE HAS A GUN, as the disputed domain name wholly incorporates the Complainant’s trademark, with the sole deletion of the letters “t” and “e” at the end of the term “juliette”, and therefore consists of a typo-squatting of the Complainant’s trademark.
Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since it has not been authorized by the Complainant to register the disputed domain name or to use its trademark within the disputed domain name, nor is the Respondent commonly known by the disputed domain name. The Complainant asserts that the Respondent is not making either a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name since the website at the disputed domain name is spreading malware.
The Complainant submits that the Respondent has registered the disputed domain name in bad faith, since the Complainant’s trademark JULIETTE HAS A GUN is distinctive and well known in the perfumery field and the disputed domain name resolves to a website spreading malware. Therefore, the Respondent targeted the Complainant’s trademark at the time of registration of the disputed domain name and the Complainant contends that the Respondent intentionally attempts to attract, for commercial gain, Internet users to its website, in which it spreads malware. Furthermore, the Complainant submits that the Respondent has engaged in a pattern of bad faith conduct by registering almost 200 domain names that infringe third parties’ well-known trademarks.
B. RespondentThe Respondent has made no reply to the Complainant’s contentions and is in default. In reference to paragraphs 5(e) and 14 of the Rules, no exceptional circumstances explaining the default have been put forward or are apparent from the record.
A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, reasonable facts asserted by a complainant may be taken as true, and appropriate inferences, in accordance with paragraph 14(b) of the Rules, may be drawn (see, e.g., Reuters Limited v. Global Net 2000, Inc.,WIPO Case No. D2000-0441; Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109; SSL International PLC v. Mark Freeman,WIPO Case No. D2000-1080; Altavista Company v. Grandtotal Finances Limited et. al.,WIPO Case No. D2000-0848; Confédération Nationale du Crédit Mutuel, Caisse Fédérale du Crédit Mutuel Nord Europe v. Marketing Total S.A.,WIPO Case No. D2007-0288).
6. Substantive Issues
Paragraph 4(a) of the Policy lists three elements, which the Complainant must satisfy in order to succeed:
(i) the disputed 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 in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe Panel finds that the Complainant is the owner of the trademark JULIETTE HAS A GUN both by registration and acquired reputation and that the disputed domain name is confusingly similar to the trademark JULIETTE HAS A GUN.
Regarding the deletion of the letters “t” and “e” at the end of the term “juliette”, basically translating the French name “Juliette” into its English version “Juliet”, the Panel notes that this is a typical case of a deliberate misspelling of a mark (so-called “typo‑squatting”), by adding, deleting, substituting or reversing the order of letters in a mark, where numerous UDRP panels in the past have found confusing similarity to be present: see, inter alia, Yurtici Kargo Servisi A.S. v. Yurticicargo Yurticikargo,WIPO Case No. D2003-0707; CareerBuilder, LLC v. Azra Khan,WIPO Case No. D2003-0493; The Sportsman’s Guide, Inc. v. Vipercom,WIPO Case No. D2003-0145; Neuberger Berman Inc. v. Alfred Jacobsen,WIPO Case No. D2000-0323.
The deletion of the letters “t” and “e” at the end of the term “juliette” does not therefore prevent the disputed domain name from being confusingly similar to the Complainant’s trademark, which is clearly recognizable in the disputed domain name, and can be considered as a case of typo-squatting (see WIPO Overview of Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9).
It is also well accepted that a generic Top-Level Domain (“gTLD”), in this case “.com”, may be ignored when assessing the similarity between a trademark and a domain name (see WIPO Overview 3.0, section 1.11).
The Panel finds that the Complainant has therefore met its burden of proving that the disputed domain name is confusingly similar to the Complainant’s trademark, pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate InterestsThe Respondent has failed to file a Response in accordance with the Rules, paragraph 5.
The Complainant in its Complaint and as set out above has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. It asserts that the Respondent, who is not currently associated with the Complainant in any way, is not using the disputed domain name for a legitimate noncommercial or fair use or in connection with a bona fide offering of goods or services, but instead the disputed domain name resolves to a website spreading malware.
According to the WIPO Overview 3.0, section 2.13:
“2.13.1 Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent […]”.
The prima facie case presented by the Complainant is enough to shift the burden of production to the Respondent to demonstrate that it has rights or legitimate interests in the disputed domain name. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in the disputed domain name, and the Panel is unable to establish any such rights or legitimate interests on the basis of the evidence in front of it.
Based on the facts of this case, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
The Panel therefore finds that paragraph 4(a)(ii) of the Policy has been satisfied.
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy provides that “for the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that [the respondent has] registered or has 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 the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) that [the 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 [the respondent has] engaged in a pattern of such conduct; or
(iii) that [the 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, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] 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 [the respondent’s] website or location”.
Regarding the registration in bad faith of the disputed domain name, the reputation of the Complainant’s trademark JULIETTE HAS A GUN in the field of perfumes is clearly established and the Panel finds that the Respondent likely knew of the Complainant and deliberately registered the disputed domain name.
As regards the use in bad faith of the disputed domain name, the Panel finds that the fact that it resolved to a webpage presenting a malicious content alert and therefore likely to distribute malware, together with the offer to sell it for a minimum price in excess of out-of-pocket costs incurred in the registration of the disputed domain name, amounts to bad faith, also taking into consideration the pattern of conduct of the Respondent in several other cases of abusive domain name registration.
Furthermore, the Panel considers that the nature of the disputed domain name, which is almost identical to the Complainant’s trademark, further supports a finding of bad faith. See, WIPO Overview 3.0, section 3.2.1.
The Panel finds that the Complainant has presented evidence to satisfy its burden of proof with respect to the issue of whether the Respondent has registered and is using the disputed domain name in bad faith.
The Panel therefore finds that paragraph 4(a)(iii) of the Policy has been satisfied.
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
Edoardo Fano
Sole Panelist
Date: October 6, 2021
1 The Panel notes that some of the above-referenced trademark registrations appear to be registered under the name of an individual, Romano Ricci, which according to the Complainant’s public website, seems to be the founder of the Complainant.