The Complainant is Blogmusik SAS, Paris, France, represented internally.
The Respondent is Yang Zhichao, Anhui, China. 2. The Domain Name and Registrar
The Disputed Domain Name is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 2, 2013. On April 3, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On April 3, 2013, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on April 9, 2013.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 12, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was May 2, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 6, 2013.
The Center appointed Philip N. Argy as the sole panelist in this matter on May 15, 2013. 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.
All other administrative requirements appear to have been satisfied. 4. Factual Background
The following facts, taken from the Complaint, remain uncontested.
The Complainant is a French company trading internationally and offering an online music-on-demand service through both free and paying models known as “Deezer Services”. By extensive trade in the Deezer Services since 2007 the Complainant has become the leader in France and subsequently in the rest of Europe in the online on-demand music space. It has developed a formidable presence on the Internet and has acquired renown in the music industry and among Internet users. The Complainant is also the owner of the website reached by “www.m” and that has now become the sole distribution channel for Deezer Services.
The Complainant is the owner of many European and foreign trademark registrations for the word DEEZER, and Deezer Services have now been launched in more than 130 countries including, relevantly for present purposes, Colombia. As part of this international development, the Complainant decided to register several new domain names including the Disputed Domain Name. However, in February 2013 the Complainant discovered that the Respondent had registered the Disputed Domain Name without the Complainant’s authorisation and that the Disputed Domain Name resolved to a “parking” page which included several commercial links to services competitive to varying degrees with the Deezer Services.
On February 8, 2013 the Complainant sent a cease and desist letter to the Respondent informing him that he was violating the Complainant’s rights and demanding that he stopped using the Disputed Domain Name and the term DEEZER. The Complainant received no reply.
The Disputed Domain Name was registered on September 8, 2011. 5. Parties’ Contentions A. Complainant
As might be expected, the Complainant relies upon all three limbs of the Policy.
First, it argues that the Disputed Domain Name is identical to the trademark rights it holds in the word DEEZER. It argues that the suffix .co may be ignored when comparing the Disputed Domain Name to the DEEZER trademark.
Secondly, it argues that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. It points to the lack of any trademark or business name registrations for DEEZER and contends that the Respondent does not own any legal lights which could justify the registration and use of the Disputed Domain Name. It claims that the Respondent has never been known as Deezer. The Complainant asserts that there is no evidence that the Respondent has used and/or has been preparing to use the term “deezer” or the Disputed Domain Name for a bona fide offering of goods or services. Nor does the word “deezer” have any specific signification which could legitimate the registration or use of the Disputed Domain Name. The Complainant contends that it is obvious that the Respondent only registered the Disputed Domain Name to capitalise on the fame of the Complainant’s Deezer Services.
Thirdly, the Complainant argues that the Disputed Domain Name has been registered and is being used in bad faith by the Respondent. It asserts that the Disputed Domain Name was registered not only to prevent the Complainant from registering it, but also to make a commercial gain to the detriment of the Complainant. It notes that the Respondent has never been authorised to use or reproduce its DEEZER trademark and asserts that the word DEEZER was invented by the Complainant and has never been used by anyone else. It follows, according to the Complainant, that the Respondent is creating a likelihood of confusion in the minds of the public as to whether the Respondent’s website is endorsed by the Complainant. This is particularly egregious to the Complainant because many of the music services linked from the parking page operated by the Registrar are illegal music services against which the Complainant has been fighting. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Despite the Respondent’s failure to file a Response or to respond in any other way to the Complaint, the Complainant bears the onus of proving that each of the three limbs of the Policy has been made out. A. Identical or Confusingly Similar
The Panel agrees with the Complainant’s submission that in this case there is no reason to treat the suffix “.co" as having any substantive effect and, accordingly, the Panel comfortably concludes that the Disputed Domain Name is identical to the Complainant’s DEEZER trademark. B. Rights or Legitimate Interests
Absent any Response it is difficult for the Panel to see any basis on which the Respondent could legitimately operate a website with links, using the DEEZER brand, to services competitive with those of the Complainant, many of which (according to the Complainant) are illegal music services.
There is simply no evidence before the Panel to displace the compelling inference that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name, and the Panel so finds. C. Registered and Used in Bad Faith
The website to which the Disputed Domain Name resolves has links to services competitive with those of the Complainant, and (according to the Complainant) many of those are illegal music services. This demonstrates on the part of the Respondent not only an awareness of the Complainant’s business but also an awareness of its DEEZER trademarks.
The Panel is entirely satisfied that the Disputed Domain Name was both registered and is being used in bad faith by the Respondent. 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 transferred to the Complainant.
Philip N. Argy
Sole Panelist
Date: May 29, 2013
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