The Complainant is L’Oréal, France, represented by Dreyfus & associés, France.
The Respondent is 陈俊 (Chen Jun), 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 December 30, 2021. On January 4, 2022, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 5, 2022, 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 January 7, 2022, 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 in English on January 10, 2022.
On January 7, 2022, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On January 10, 2022, the Complainant confirmed its 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 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 in English and Chinese of the Complaint, and the proceedings commenced on January 14, 2022. In accordance with the Rules, paragraph 5, the due date for Response was February 3, 2022. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 4, 2022.
The Center appointed Rachel Tan as the sole panelist in this matter on February 17, 2022. 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 is a French industrial group specializing in the field of cosmetics and beauty. It has a portfolio of 36 brands, employs 86,000 employees and is present in 150 countries. In particular, L’Oréal China was founded in 1997, with its headquarters in Shanghai and offices in five other cities.
The Complainant is the owner of marks consisting of the element “L’ORÉAL” or “L’OREAL” in different jurisdictions, including International Trade Mark Registration No. 1532645 for L'OREAL, registered on April 29, 2020, designating, inter alia, China in classes 3 and 5; and International Trade Mark Registration No. 1532298 for L’ORÉAL PARIS, registered on April 24, 2020, in classes 3 and 5.
The Complainant is the owner of the domain names
The Respondent is 陈俊 (Chen Jun), China.
The disputed domain name was registered on November 4, 2021. At the date of filing the Complaint, the disputed domain name resolved to a domain name trading platform offering the disputed domain name for sale for USD 20,000. At the date of this Decision, the disputed domain name resolves to the same domain name trading platform, but states “lorealmeta.com”, “Hum, this page is gone”, and “This domain listing is deleted. The domain might become available for sale again in the future. Check back later.”
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain name reproduces the Complainant’s L'ORÉAL mark in its entirety, which previous UDRP panels have considered to be “well known” or “famous”. The additional term “meta” is insufficient to avoid confusing similarity between the disputed domain name and the Complainant’s mark. The omission of the apostrophe after the letter “l” in the L’ORÉAL mark is insignificant and inadequate to avoid a finding of confusing similarity. The extension “.com” is not to be taken into consideration when examining the identity or similarity between the Complainant’s mark and the disputed domain name.
The Complainant further alleges that the Respondent is neither affiliated with the Complainant in any way nor has it been authorized by the Complainant to use and register its mark, or to seek registration of any domain name incorporating its mark. The Respondent is not commonly known by the disputed domain name or the name “L’ORÉAL”. The Respondent fails to show any intention of noncommercial or fair use of the disputed domain name as it resolves to a default page of the marketplace “dan”, offering it for sale for the amount of USD 20,000.
The Complainant finally asserts that it is implausible that the Respondent was unaware of the Complainant when it registered the disputed domain name. The Respondent registered the disputed domain name based on the notoriety and attractiveness of the Complainant’s mark to divert Internet traffic to its website. Given the goodwill of the Complainant, the nature of the disputed domain name and the use of the disputed domain name, the Respondent chose the disputed domain name to deliberately cause confusion amongst Internet users as to its source in order to take unfair advantage of the Complainant's right.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1 Language of the ProceedingInitially, the Panel must address the language of the proceeding. Paragraph 11(a) of the Rules provides that the language of the administrative proceeding shall be the language of the Registration Agreement unless otherwise agreed by the parties, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the administrative proceeding. The panel may choose to write a decision in either language, or request translation of either party’s submissions.
In this case, the Registrar has confirmed to the Center that the language of the Registration Agreement as used by the registrant for the disputed domain name is Chinese. However, the Complainant has requested that English be adopted as the language of the proceeding for the reasons summarized below:
(a) the Complainant is located in France and has no knowledge of Chinese. The use of another language other than English in the proceeding would impose a burden on the Complainant and the proceeding would inevitably be delayed;
(b) the disputed domain name includes only Latin characters, which strongly suggests that the Respondent has knowledge of languages other than Chinese; and
(c) English is the primary language for international relations, and it is one of the working languages of the Center.
It is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Panel has considered the above circumstances, and finds that English shall be the language of this proceeding. The reasons are set out below:
(a) the Complainant is a company based in France. Requiring the Complainant to submit documents in Chinese would lead to delay and cause the Complainant to incur translation expenses;
(b) the Respondent’s choice of Roman letters for the disputed domain name indicate that the Respondent is familiar with the English language;
(c) even if the Respondent does not possess a sufficient command of English to understand the Complaint, there were ample opportunities for the Respondent to raise an objection. The Center notified the Parties in English and Chinese of the Complainant’s request for English to be the language of the proceeding, but the Respondent did not object to this request;
(d) the Respondent has failed to participate in the proceeding even though the Center sent the notification in English and Chinese of the Complaint, and has been notified of his/her default; and
(e) the Complaint has been submitted in English. No foreseeable procedural benefit may be served by requiring Chinese to be used. On the other hand, the proceeding may proceed expeditiously in English.
Accordingly, the Panel will proceed with issuing this Decision in English.
6.2 Substantive Issues A. Identical or Confusingly SimilarThe Panel is satisfied that the Complainant has adduced evidence to demonstrate its established rights in the L’ORÉAL or L’OREAL mark.
The Panel notes the disputed domain name is comprised of the L’ORÉAL or L’OREAL mark in its entirety. The positioning of the L’ORÉAL or L’OREAL mark at the beginning of the disputed domain name makes it instantly recognizable. In cases where a domain name incorporates the entirety of a trade mark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing. See section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
Further, it is accepted by previous UDRP panels that the addition to the complainant’s trade mark of other words or terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element of the Policy. Accordingly, the additional word “meta” does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s L’ORÉAL or L’OREAL mark. See section 1.8 of the WIPO Overview 3.0.
Lastly, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”), in this case “.com”. See section 1.11.1 of the WIPO Overview 3.0.
Accordingly, the Panel finds that the Complainant has satisfied the first element under paragraph 4(a) of the Policy.
B. Rights or Legitimate InterestsIn circumstances where the Complainant possesses exclusive rights to the L’ORÉAL or L’OREAL mark whereas the Respondent seems to have no trade mark rights, and considering the facts and arguments set out above, the Panel is satisfied that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and the burden of production shifts to the Respondent. See section 2.1 of the WIPO Overview 3.0.
The Respondent has not provided evidence of a legitimate use of the disputed domain name or reasons to justify the choice of a domain name that is identical or confusing similar to the Complainant’s L’ORÉAL or L’OREAL mark. Further, there is no indication to show that the Respondent is commonly known by the disputed domain name or otherwise has rights or legitimate interests in it. The Complainant has not granted the Respondent a license or authorization to use the Complainant’s L’ORÉAL or L’OREAL mark or register the disputed domain name. Moreover, the Panel notes that the Respondent was previously offering the disputed domain name for sale. None of these circumstances indicates a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name within the meaning of paragraph 4(c) of the Policy are present in this case.
Therefore, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds that the Complainant has satisfied the second element under paragraph 4(a) of the Policy.
C. Registered and Used in Bad FaithThe Complainant’s L’ORÉAL or L’OREAL mark has been registered worldwide. The disputed domain name was registered after the registration of the Complainant’s L’ORÉAL or L’OREAL mark. Through extensive use and advertising, the Complainant’s L’ORÉAL or L’OREAL mark is well known throughout the world. Search results using the key word “l’oréal” or “l’oreal” on English and Chinese Internet search engines direct Internet users to the Complainant and its business, which indicates that an exclusive connection between the L’ORÉAL or L’OREAL mark and the Complainant has been established. As such, the Respondent either knew or should have known of the Complainant’s L’ORÉAL or L’OREAL mark when registering the disputed domain name, and has exercised “the kind of willful blindness that numerous panels have held support a finding of bad faith”. See Barclays Bank PLC v. Andrew Barnes,WIPO Case No. D2011-0874.
Section 3.1.4 of the WIPO Overview 3.0 states that “[…] mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trade mark by an unaffiliated entity can by itself create a presumption of bad faith”. In this case, the disputed domain name is confusingly similar to the widely-known L’ORÉAL or L’OREAL mark and was registered by the Respondent who has no relationship with the Complainant, which means that a presumption of bad faith can be created.
In addition, the disputed domain name was being offered for sale for USD 20,000 on the resolved website, which is in excess of the normal costs for registering and maintaining a domain name. The absence of circumstances indicating that the Respondent has rights or legitimate interests in the disputed domain name leads the Panel to conclude that the Respondent’s intent in registering the disputed domain name was in fact to profit in some fashion from or otherwise exploit the Complainant’s trade mark. In this case, the Panel finds the sale of the disputed domain name as evidence of bad faith registration and use. See section 3.1.1 of the WIPO Overview 3.0.
The Respondent has kept silent in the face of the Complainant’s allegations of bad faith. Taking into account these circumstances, the Panel finds that the Respondent must have known of the Complainant before registering the disputed domain name and, considering the Respondent’s lack of rights or legitimate interests, and by registering and using the disputed domain name as discussed above, the Panel is led to conclude that the disputed domain name was registered and is being used in bad faith.
Accordingly, the Panel finds that the Complainant has satisfied the third element under paragraph 4(a) of the Policy.
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,
Rachel Tan
Sole Panelist
Date: March 2, 2022