Complainant is Rire et Chansons, France, represented by IP Twins, France.
Respondent is wangcheng, China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 17, 2021. On September 18, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 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 named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on September 22, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on September 22, 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 Respondent of the Complaint, and the proceedings commenced on September 24, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 14, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 18, 2021.
The Center appointed M. Scott Donahey as the sole panelist in this matter on October 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 BackgroundComplainant is a French company involved in radio broadcasting. Founded in 1989, its name and trademark, RIRE & CHANSONS (roughly translated into English as “laughter and songs”) is descriptive of the station’s content. The radio station has 1.2 million listeners daily in France, which constitutes the tenth largest audience in the country.
Complainant registered the French RIRE & CHANSONS trademark on October 23, 2018 (Registration No. 4493846), and the International trademark RIRE & CHANSONS on February 22, 2019 (Registration No. 1476151).
Respondent registered the disputed domain name
Respondent is using the disputed domain name to resolve to a website featuring pornographic content which is in Chinese.
5. Parties’ Contentions A. ComplainantComplainant asserts that the disputed domain name is identical or confusingly similar to Complainant’s registered trademarks. Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name. Finally, Complainant alleges that the disputed domain name was registered and is being used in bad faith.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsParagraph 15(a) of the Rules provides that “a panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable”.
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly SimilarThe disputed domain name consists of the French word “chansons”, which means “songs” in English followed by the French word “et”, which is the French equivalent of the English word “and”, and ending with the French word “rires”, which means French plural for laughter.
Complainant’s trademark RIRE & CHANSONS is recognizable in the disputed domain name. The use of an ampersand by Complainant changed to the French word for “and” by Respondent are also equivalents. Both may be translated as “songs and laughter” or “music and humor”. The fact that a website using the Chinese language sought out trademarked French words and simply rearranged them in the disputed domain name and added an unnecessary plural form does not prevent a finding of confusing similarity. Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademarks.
B. Rights or Legitimate InterestsWhile the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the almost impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant asserted that Respondent is not commonly known by the disputed domain name, and it has given no license or authorization of any kind to Respondent. In addition, Complainant asserted that the disputed domain name resolves to an active website displaying pornographic contents, for commercial gain, which is not a bona fide offering of goods or services. Furthermore, Complainant asserted that the use of its trademarks predates the registration of the disputed domain name. Respondent has failed to assert any such rights.
Furthermore, UDRP panels have recognized that merely registering a domain name comprised of dictionary words does not by itself automatically confer rights or legitimate interests on the respondent. In order to find rights or legitimate interests in a domain name based on its dictionary meaning, the domain name should be genuinely used, or at least demonstrably intended for such use, in connection with the relied-upon dictionary meaning and not to trade off third-party trademark rights. See section 2.10 of the WIPO Overview 3.0.
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad FaithRespondent used all the words of Complainant’s trademarks, seeking to avoid a finding of bad faith registration and use by reversing word order, adding a plural “-s” to the French equivalent of the English word for “laughter” without changing its meaning, and substituting the French “et”, meaning “and” in English, for the ampersand in Complainant’s trademarks. It then used the disputed domain name to attract Internet users, for commercial gain, to the website featuring pornographic content with a warning posted in the English language. The Panel has no difficulty in finding that the disputed domain name has been registered and is being used in 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,
M. Scott Donahey
Sole Panelist
Date: October 23, 2021