ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION L'Oréal v. 陈龙 (chenlong) Case No. D2023-5082 1. The Parties Complainant is L'Oréal, France, represented by Dreyfus & associés, France. Respondent is 陈龙 (chenlong), China. 2. The Domain Name and Registrar The disputed domain name (the "Domain Name") is registered with Xin Net Technology Corp. (北京新网数码信息技术有限公司) (the "Registrar"). 3. Procedural History The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the "Center") on December 6, 2023. On December 6, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On December 8, 2023, 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 (not disclosed) and contact information in the Complaint. The Center sent an email communication to Complainant on December 8, 2023, 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 in English on December 11, 2023. On December 8, 2023, the Center sent an email communication to the Parties in Chinese and English regarding the language of the proceeding. On December 11, 2023, Complainant confirmed its request that English be the language of the proceeding. Respondent did not submit any comment on Complainant's submission. 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 in English and Chinese of the Complaint, and the proceedings commenced on December 14, 2023. In accordance with the page 2 Rules, paragraph 5, the due date for Response was January 3, 2024. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on January 5, 2023. The Center appointed Kimberley Chen Nobles as the sole panelist in this matter on January 15, 2024. 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 Background Complainant is a French industrial group in the business of cosmetics. Created in 1909 by a French chemist, Complainant is currently one of the world's largest groups in the cosmetics business, with a presence in 150 countries, a portfolio of 36 brands, and 86,000 employees. Complainant acquired the skincare brand CeraVe from Valeant. CeraVe was founded in 2005 and offers a range of advanced skincare products, such as cleansers, moisturizers, sunscreens, healing ointments and a dedicated baby line. CeraVe is now available in over 40 countries worldwide. Complainant owns numerous CERAVE trademark registrations around the world. Complainant is in particular the owner of the following CERAVE trademark registrations: - European Union Trademark No. 016162752 for the CERAVE word mark, registered on June 21, 2017; - International Trademark Registration No. 1365989 for the CERAVE word mark, registered on June 15, 2017; and - International Trademark Registration No. 1693411 for the CERAVE word mark, registered on June 2, 2022, designating China (where Respondent is located) and the United Kingdom. In addition, Complainant owns and operates (through its subsidiary in the United States of America), the domain name , which was registered on November 18, 2004. The Domain Name was registered on May 31, 2023, and resolves to a website that attempts to imitate Complainant's official website, for example, featuring Complainant's trademarks and content. The website also claims to be "Ceraveus Official Store". On October 12, 2023, Complainant sent notifications to the Registrar and hosting provider requesting the blocking of the Domain Name and the deactivation of the website and the corresponding email server. Both the Registrar and hosting company did not comply with these requests. Subsequently, Complainant proceeded with the current UDRP procedure. 5. Parties' Contentions A. Complainant Complainant contends that (i) the Domain Name is identical or confusingly similar to Complainant's trademarks; (ii) Respondent has no rights or legitimate interests in the Domain Name; and (iii) Respondent registered and is using the Domain Name in bad faith. In particular, Complainant contends that it has trademark registrations for CERAVE, and that Respondent registered and is using the Domain Name with the intention to confuse Internet users looking for bona fide and well-known CERAVE products and services. Complainant notes that it has no affiliation with Respondent. Complainant further contends that Respondent is using the Domain Name as a tool to exploit Complainant's reputation for its own commercial gain, and that Respondent has no rights or legitimate interests in the registration and use of the Domain Name other than trademark infringement. Further, Complainant contends that Respondent has acted in bad faith in acquiring and setting up the Domain Name, when Respondent clearly knew of Complainant's rights. page 3 B. Respondent Respondent did not reply to Complainant's contentions. 6. Discussion and Findings 6.1. Preliminary Issue: Language of the Proceeding The Rules, in paragraph 11(a), provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the proceeding shall be the language of the registration agreement, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the administrative proceeding. Complainant requests that the language of the proceeding should be English. According to the information received from the Registrar, the language of the Registration Agreement for the Domain Name is Chinese. Complainant submits that the English language should be the language for the current proceeding because the Domain Name is composed entirely of English characters; neither Complainant nor its representative are proficient in Chinese and the retention of a translator would add considerable costs to Complainant cause undue burden on Complainant and result in delay to the proceedings.. In exercising its discretion to use a language other than that of the Registration Agreement for the Domain Name, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both Parties, taking into account all relevant circumstances of the case, including matters such as the Parties' ability to understand and use the proposed language, time, and costs. The Panel accepts Complainant's submissions regarding the language of the proceeding. The Panel also notes that the Domain Name does not have any specific meaning in the Chinese language, and that the Domain Name contains Complainant's CERAVE trademark in its entirety, and the addition of the English term "us" (which is generally known as a geographical reference to the United States of America) to Complainant's trademark in the Domain Name and the content of the website to which the Domain Name resolves is in English, all of which indicate that Respondent understands English. The Panel further notes that the Center notified the Parties in Chinese and English of the language of the proceeding as well as notified Respondent in Chinese and English of the Complaint. Respondent chose not to comment on the language of the proceeding, nor did Respondent choose to file a Response in Chinese or English. The Panel is also mindful of the need to ensure that the proceeding is conducted in a timely and costeffective manner. Complainant may be unduly disadvantaged by having to translate the Complaint into Chinese and to conduct the proceeding in Chinese. Having considered all the circumstances of this case, the Panel determines that English be the language of the proceeding. 6.2. Substantive Issues Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that: (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 was registered and is being used in bad faith. page 4 Section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0") states that failure to respond to the complainant's contentions would not by itself mean that the complainant is deemed to have prevailed; a respondent's default is not necessarily an admission that the complainant's claims are true. Thus, although in this case, Respondent has failed to respond to the Complaint, the burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A. Identical or Confusingly Similar Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. See WIPO Overview 3.0, section 1.2.1. Complainant has provided evidence of its rights in the CERAVE trademarks, as noted above under section 4. Complainant has also submitted evidence which supports that the CERAVE trademarks are widely known and a distinctive identifier of Complainant's products and services. Complainant has therefore proven that it has the requisite rights in the CERAVE trademarks. With Complainant's rights in the CERAVE trademarks established, the remaining question under the first element of the Policy is whether the Domain Name, typically disregarding the Top-Level Domain ("TLD") in which it is registered (in this case is, ".com"), is identical or confusingly similar to Complainant's trademark. See, e.g., B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842. Here, the Domain Name is confusingly similar to Complainant's CERAVE trademarks. The use of Complainant's trademark in its entirety, with the addition of the word "us", does not prevent a finding of confusing similarity between the Domain Name and the CERAVE mark as it is recognizable in the Domain Name. WIPO Overview 3.0, section 1.8. Thus, the Panel finds that Complainant has satisfied the first element of the Policy. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, a complainant must make a prima facie showing that a respondent possesses no rights or legitimate interests in a disputed domain name. See, e.g., Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393. Once a complainant makes out such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with relevant evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP. From the record in this case, it is evident that Respondent does not have any rights or legitimate interests in the Domain Name. In addition, Complainant asserts that Respondent is not an authorized reseller and is not related to Complainant. Respondent is also not known to be associated with the CERAVE trademarks and there is no evidence showing that Respondent has been commonly known by the Domain Name. In addition, Respondent has not used the Domain Name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the Domain Name initially reverts to a webpage that attempted to imitate Complainant's website and advertised Complainant's products. This website displays the CERAVE word mark, duplicates Complainant's logo, copyrighted texts, and images obtained from Complainant's website, and claims to be "Ceraveus Official Store". Further, the website the Domain Name reverts to has a similar look and feel to that of Complainant's website at the domain name , attempts to impersonate Complainant's website, and purports to offer CERAVE-branded goods that Complainant sells. Such use does not constitute a bona fide offering of goods or services or a page 5 legitimate noncommercial or fair use and cannot under the circumstances confer on Respondent any rights or legitimate interests in the Domain Name. See, e.g., Intesa Sanpaolo S.p.A. v. Charles Duke / Oneandone Private Registration, WIPO Case No. D2013-0875. Moreover, the nature of the Domain Name, including Complainant's trademark and the term "us" which refers to CERAVE products purportedly offered for sale in the United States of America and reinforced its association with Complainant's business and products, is misleading and carries a risk of implied affiliation. See WIPO Overview 3.0, section 2.5.1. Accordingly, Complainant has provided evidence supporting its prima facie claim that Respondent lacks any rights or legitimate interests in the Domain Name. Respondent has failed to produce countervailing evidence of any rights or legitimate interests in the Domain Name, reinforcing the notion that Respondent was not using the Domain Name in connection with a bona fide offering. Thus, the Panel concludes that Respondent does not have any rights or legitimate interests in the Domain Name, and Complainant has met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel finds that Respondent's actions indicate that Respondent registered and is using the Domain Name in bad faith. Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances indicating bad faith registration and use on the part of a domain name registrant, namely: "(i) circumstances indicating that you have registered or you have 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 that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have 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 you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location." The Panel finds that Complainant has provided ample evidence to show that registration and use of the CERAVE trademarks long predate the registration of the Domain Name. Complainant is also well established and known. Indeed, the record shows that Complainant's CERAVE trademarks and related products and services are widely known and recognized. In addition, the addition of the term "us" to Complainant's trademark in the Domain Name is directly related to Complainant's business activities, and the website at the Domain Name displays the Complainant's CERAVE trademark. Therefore, Respondent was aware of the CERAVE trademarks when it registered the Domain Name. See WIPO Overview 3.0, section 3.2.2; and see also TTT Moneycorp Limited v. Privacy Gods / Privacy Gods Limited, WIPO Case No. D2016-1973. page 6 The Panel therefore finds that Respondent's awareness of Complainant's trademark rights at the time of registration suggests bad faith. See Red Bull GmbH v. Credit du Léman SA, Jean-Denis Deletraz, WIPO Case No. D2011-2209; Nintendo of America Inc v. Marco Beijen, Beijen Consulting, Pokemon Fan Clubs Org., and Pokemon Fans Unite, WIPO Case No. D2001-1070; and BellSouth Intellectual Property Corporation v. Serena, Axel, WIPO Case No. D2006-0007. Further, the registration of the Domain Name incorporating Complainant's CERAVE trademark in its entirety suggests Respondent's actual knowledge of Complainant's rights in the CERAVE trademarks at the time of registration of the Domain Name and its effort to opportunistically capitalize on the registration and use of the Domain Name. Moreover, Respondent registered and is using the Domain Name to confuse and mislead consumers looking for bona fide and well-known CERAVE products and services of Complainant or authorized partners of Complainant. In particular, the evidence provided by Complainant indicates that the Domain Name reverts to a website which features Complainant's CERAVE word mark, duplicates Complainant's copyrighted images, texts, purportedly offers the CERAVE-branded products, that is, CERAVE-branded skin care products, and claims to be "Ceraveus Official Store". The use of the CERAVE mark in the Domain Name is intended to capture Internet traffic from Internet users who are looking for Complainant's products and services. Therefore, by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's webpage by creating a likelihood of confusion with Complainant's CERAVE marks as to the source, sponsorship, affiliation, or endorsement of Respondent's website. Further, the Panel also notes the failure of Respondent to submit a Response. Accordingly, the Panel finds that Respondent registered and is using the Domain Name in bad faith and Complainant succeeds under the third element of paragraph 4(a) of the Policy. 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 Domain Name be transferred to Complainant. /Kimberley Chen Nobles/ Kimberley Chen Nobles Sole Panelist Date: January 25, 2024
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