ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Chalhoub Group Limited v. soufaine rajae Case No. D2023-0153 1. The Parties The Complainant is Chalhoub Group Limited, British Virgin Islands, United Kingdom, represented by Cabinet Flechner, France. The Respondent is Soufaine Rajae, Morocco. 2. The Domain Name and Registrar The disputed domain name is registered with NameCheap, Inc. (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 12, 2023. On January 12, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 12, 2023, 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 18, 2023 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 amendment to the Complaint on January 23, 2023. The Center verified that the Complaint together with the amendment to 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 of the Complaint, and the proceedings commenced on January 26, 2023. In accordance with the Rules, paragraph 5, the due date for Response was February 15, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on February 16, 2023. The Center appointed Edoardo Fano as the sole panelist in this matter on February 22, 2023. 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 page 2 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 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 Background The Complainant is Chalhoub Group Limited, a company operating in the field of footwear and accessories retailing and owning the following trademark registration for LEVEL SHOES: - United Arab Emirates Trademark Registration No. 240390 for LEVEL SHOES and design, registered on March 7, 2016. The Complainant also operates on the Internet, its website being "www.levelshoes.com", an online retailer website in which third parties' footwear and accessories are offered for sale. The Complainant provided evidence in support of the above. According to the WhoIs records, the disputed domain name was registered on June 18, 2022, and it resolves to a website where mainly footwear but also other fashion goods are offered for sale in the United Arab Emirates. 5. Parties' Contentions A. Complainant The Complainant states that the disputed domain name is confusingly similar to its trademark LEVEL SHOES, as the disputed domain name wholly incorporates 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 started using the disputed domain name, which infringes the Complainant's trademark, long after the Complainant's trademark has been registered. The Complainant submits that the Respondent is using the disputed domain name for a website in which there is no information about its owner, trying to draw customers away from the Complainant's official website, and that qualifies as bad faith registration and use of the disputed domain name. B. Respondent The Respondent has made no reply to the Complainant's contentions and is in default. In reference to paragraphs 5(f) 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 WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.3. page 3 6. Discussion and Findings 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 Similar The Panel finds that the Complainant is the owner of the trademark LEVEL SHOES and that the disputed domain name is confusingly similar to the trademark LEVEL SHOES. It is well accepted that a generic Top-Level Domain ("gTLD"), in this case ".com", is typically ignored when assessing the similarity between a trademark and a domain name. See WIPO Overview 3.0, section 1.11.1. The Panel finds that the Complainant has therefore met its burden of proving that the disputed domain name is identical to the Complainant's trademark, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests Paragraph 4(a)(ii) of the Policy requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent may establish rights or legitimate interests in the disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy any of the following circumstances, in particular but without limitation: "(i) before any notice to you 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 (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 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." According to paragraph 4(a) of the Policy, the Complainant has the burden of proving the three elements of the Policy. However, satisfying the burden of proving a lack of the Respondent's rights or legitimate interests in respect of the disputed domain name according to paragraph 4(a)(ii) of the Policy is potentially quite difficult, since proving a negative circumstance is generally more complicated than establishing a positive one. As such, it is well accepted that it is sufficient for the Complainant to make a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name in order to shift the burden of production to the Respondent. If the Respondent fails to demonstrate rights or legitimate interests in the disputed domain name in accordance with paragraph 4(c) of the Policy or on any other basis, the Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. page 4 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. The disputed domain name is used for a website where footwear and other fashion goods are offered for sale in the United Arab Emirates, that is the same products as the Complainant's in the one of the countries in which the Complainant is running its retail business. 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. Moreover, while the disputed domain name consists of two dictionary terms "shoes" and "level", in altered order when compared to the Complainant's trademark, the combination of these two terms in the English language is not common. The Panel finds that the Respondent likely chose the composition of the disputed domain name with the Complainant's trademark in mind, in order to create a risk of implied affiliation. 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 Faith Paragraph 4(b) of the Policy provides that "[f]or 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) [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) [the respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent's] website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [the respondent's] web site or location or of a product or service on [the respondent's] web site or location". Regarding the registration in bad faith of the disputed domain name, the reputation of the Complainant's trademark LEVEL SHOES in the field of footwear and accessories retailing is clearly established and the Panel finds that the Respondent likely knew of the Complainant, and deliberately registered the disputed domain name in bad faith, especially because the content of the website to which the disputed domain name resolves consists of purportedly offering for sale the same products as the Complainant. page 5 The Panel further notes that the disputed domain name is also used in bad faith since on the relevant website the same products as the Complainant's are offered for sale in an attempt to pass off as the Complainant, an activity clearly detrimental to the Complainant's business. The above suggests to the Panel that the Respondent intentionally registered and is using the disputed domain name in order both to disrupt the Complainant's business, in accordance with paragraph 4(b)(iii) of the Policy, and to attract, for commercial gain, Internet users to its website in accordance with paragraph 4(b)(iv) of the Policy. Furthermore, the Panel considers that the nature of the inherently misleading disputed domain name, which includes the Complainant's trademark in its entirety by reproducing in the opposite order the two terms composing 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, and the Panel notes that the Respondent did not participate in this proceeding. The Panel therefore finds that paragraph 4(a)(iii) of the Policy has been satisfied. 7. Decision For 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 be cancelled. /Edoardo Fano/ Edoardo Fano Sole Panelist Date: February 28, 2023
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