The Complainants are Vente-privee.com, France and Vente-privee.com IP S.à.r.l., Luxembourg, (referred to collectively as the “Complainant”) represented by Cabinet Degret, France.
The Respondent is Sarah Hampton, United States of America (“United States”).
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”), in French, on October 28, 2020. On October 28, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 29, 2020, 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 October 30, 2020 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 November 4, 2020.
The Center sent an email communication to the Parties on October 30, 2020, regarding the language of the proceeding. The Complainant filed a request for French to be the language of the proceeding on November 4, 2020. The Respondent did not submit any arguments as to the language of the proceeding.
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, in French and in English, and the proceeding commenced on November 11, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 1, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 2, 2020.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on December 17, 2020. 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 A. ComplainantThe Complainant is a company incorporated in France and a leading e-commerce company, operating under the trade marks VENTE-PRIVEE.COM and VENTE-PRIVEE (the “Trade Mark(s)”).
The Complainant is the owner of registrations in jurisdictions worldwide for the Trade Marks, including French registration No. 04/3.318.310 for the Trade Mark VENTE-PRIVEE.COM, with a registration date of October 14, 2004; International registration No. 1.116.436 for the Trade Mark VENTE-PRIVEE, with a registration date of February 21, 2012; and European Union registration No. 11.991.965 for the Trade Mark VENTE-PRIVEE, with a registration date of January 3, 2014.
B. RespondentThe Respondent is apparently an individual resident in the United States.
C. The Disputed Domain NameThe disputed domain name was registered on August 1, 2020.
D. Use of the Disputed Domain NameThe disputed domain name resolves to a multi-language “This domain is for sale” website hosted by Dan.com (the “Website”).
5. Parties’ Contentions A. ComplainantThe Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark; the Respondent has no rights or legitimate interests in respect of the disputed domain name; and the disputed domain name has been registered and is being used in bad faith.
B. RespondentThe Respondent did reply to the Complainant’s contentions.
6. Discussion and Findings 6.1. Language of the ProceedingThe language of the Registration Agreement for the disputed domain name is English. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the Parties, or unless specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, 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 Complainant has requested that the language of the proceeding be French, for the following reasons:
(i) The Complainant is a company based in France;
(ii) The disputed domain name comprises French words;
(iii) The Website is a French language website, and as the Respondent is responsible for the content appearing on the Website, it is reasonable to assume that she is familiar with the French language; and
(iv) It would be time-consuming and expensive for the Complainant to be required to translate the evidence it relies upon herein into English.
The Respondent has taken no part in this proceeding and did not file any submissions regarding the language of the proceeding.
In exercising its discretion to use a language other than that of the Registration Agreement, 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 finds there is insufficient evidence to support a conclusion that the Respondent, a person apparently based in the United States, is conversant in the French language. In this regard, the Panel notes that the Website is a multi-language website, available in English, French, Spanish, German, Dutch, Hindi, and Chinese. Furthermore, it would appear that the default first choice language of the Website is governed by the default language of the relevant user’s Internet browser.
The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that:
(i) it will accept the filing of the Complaint in French; and
(ii) it will render this Decision in English.
6.2. Substantive Elements of the PolicyThe Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly SimilarThe Panel finds that the Complainant has rights in the Trade Marks acquired through use and registration.
The disputed domain name consists of common, obvious, or intentional misspelling of the Trade Marks (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9).
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Marks.
B. Rights or Legitimate InterestsParagraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Marks. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that she has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been offered for sale via the Website.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad FaithGiven the notoriety of the Complainant and of its Trade Marks; the close similarity between the disputed domain name and the Trade Marks; the lack of any substantiated credible explanation from the Respondent; the offer for sale of the disputed domain name via the Website; and the Complainant’s use of a privacy protection service provided by the Registrar, the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Complainant’s Trade Marks at the time she registered the disputed domain name.
For all the foregoing reasons, the Panel concludes 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
Sebastian M.W. Hughes
Sole Panelist
Dated: December 31, 2020