Complainant is Lesaffre et Compagnie, France, represented by Nameshield, France.
Respondent is Ye Li, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 21, 2020. On December 21, 2020, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On December 22, 2020, SIDN transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”). In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on December 29, 2020. In accordance with the Regulations, article 7.1, the due date for Response was January 18, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on January 21, 2021. The Center appointed Remco M.R. van Leeuwen as the panelist in this matter on March 1, 2021. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background Complainant is a global key player in yeasts and fermentation. Complainant designs, manufactures and markets innovative solutions for baking, “food taste and pleasure”, health care and biotechnology. Complainant employs 10,500 people in 81 subsidiaries based in 51 countries. According to the website linked to Complainant’s domain name Complainant is the proprietor of several trademark registrations for the mark LESAFFRE, including European Union trademark registration for the figurative mark LESAFFRE GROUP, number 003623097, registered on June 10, 2005, for goods and services in classes 1, 5, 29, 30, 31, 41 and 42 (the “Trademark”). The Domain Name was registered on December 12, 2020. The Panel accessed the website linked to the Domain Name on March 5, 2021, which offered a pay-per-click (“PPC”) parking page advertising scheme showing hyperlinks referencing “Collectie Kunst”, “Alimentaire Usine”, “Usines De Produits”, “Kaders”, “Emballage Usine” and “Schilderijen Kopen Kunst” (the “Website”). These hyperlinks redirect visitors to a second page with advertising links to various websites of other companies. The Website also includes a link on the bottom that states: “Buy this domain. The domain lesaffre.nl may be for sale by its owner”. This link leads to a web page stating “Make an offer on this domain”, where an offer can be made in United States dollars in order to buy the Domain Name. 5. Parties’ Contentions A. Complainant Complainant states that it has rights in the Trademark and that the Domain Name is identical to the Trademark, as the Domain Name incorporates the Trademark in its entirety. Complainant contends that the addition of the country code Top Level Domain (ccTLD) “.nl” does not change the overall impression of the Domain Name. Complainant further contends that there exists a likelihood of confusion between the Domain Name, the Trademark, Complainant and its associated domain names. Complainant also argues that Respondent, who is unknown to Complainant, has no rights or legitimate interest in the Domain Name as Respondent does not carry out any activity for Complainant, nor has any business with Complainant. Furthermore, Respondent has not been given any permission by Complainant to use the Trademark in any manner or to apply for registration of the Domain Name. Moreover, Respondent is not commonly known by the Domain Name. Complainant notes that the Domain Name resolves to a website that offers the above-mentioned hyperlinks. In Complainant’s view, using the Domain Name in this manner is neither a bona fide offering of goods or services nor noncommercial or fair use of the Domain Name. Complainant further states that the term LESAFFRE has no meaning in English, Dutch or any other language. Therefore, Complainant believes that Respondent must have been aware of Complainant’s existence and rights at the time of registering the Domain Name. Complainant contends that Respondent registered and uses the Domain Name in bad faith as Respondent uses the Domain Name to intentionally divert Internet users to the Website where Respondent is compensated via the hyperlinks. Using a confusingly similar domain name to divert Internet users to the Website for financial gain can demonstrate bad faith. Based on the foregoing, Complainant contends that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its Website or other online location, by creating a likelihood of confusion with the Trademark as to the source, sponsorship, affiliation, or endorsement of the Domain Name. Complainant concludes that Respondent is known for such behavior, citing two previous WIPO cases against Respondent (Automobile Club di Brescia v. Ye Li, 1600757,WIPO Case No. DAE2020-0003 and Yves Saint Laurent, SAS v. Ye Li, WIPO Caso No. DMX2019-0020). B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings As Respondent has not filed a response, the Panel shall rule on the basis of the Complaint. In accordance with article 10.3 of the Regulations, the Complaint shall in that event be granted, unless the Panel considers it to be without basis in law or fact. Pursuant to article 2.1 of the Regulations, Complainant’s request to transfer the Domain Name must meet three cumulative conditions: a) the Domain Name is identical or confusingly similar to: I. a trademark, or trade name, protected under Dutch law in which Complainant has rights; or II. a personal name registered in the General Municipal Register (“gemeentelijke basisadministratie”) of a municipality in the Netherlands, or the name of a Dutch public legal entity or the name of an association or foundation registered in the Netherlands under which Complainant undertakes public activities on a permanent basis; and b) Respondent has no rights to or legitimate interests in the Domain Name; and c) the Domain Name has been registered or is being used in bad faith. Considering these conditions, the Panel rules as follows. A. Identical or Confusingly Similar Complainant has based the Complaint on the Trademark. Complainant has submitted a copy of the registration of the Trademark demonstrating that Complainant is the holder of the Trademark. The Trademark is a figurative mark, of which the dominant part is the term (and first word) LESAFFRE. The Trademark is protected under Dutch law. The Panel assumes the validity of the Trademark and will review the Complaint on this basis. It is established case law under the Regulations that the ccTLD “.nl” may be disregarded in assessing the similarity between the relevant trademark on the one hand, and the disputed domain name on the other hand (see, e.g., Caterpillar Inc. v. H. van Zuylen Materieel,WIPO Case No. DNL2011-0073; Roompot Recreatie Beheer B.V. v. Edoco LTD,WIPO Case No. DNL2008-0008). The Domain Name includes the Trademark in its entirety, with the exception of the word “group”. The Domain Name is textually, visually and phonetically identical to the dominant part of the Trademark. The Panel finds that the Domain Name is confusingly similar to the Trademark for purposes of the Regulations. Therefore, the first requirement of article 2.1(a) under I of the Regulations has been met. B. Rights or Legitimate Interests Article 2.1(b) of the Regulations requires Complainants to demonstrate that Respondent has no rights to or legitimate interests in the Domain Name. This condition is met if Complainants make out a prima facie case that Respondent has no such rights or legitimate interests and if Respondent fails to rebut this (see, e.g., Technische Unie B.V. and Otra Information Services v. Technology Services Ltd.,WIPO Case No. DNL2008-0002). Complainant alleges that Respondent lacks rights to or legitimate interests in the Domain Name for the reasons set out in section 5.A above. Complainant has demonstrated that the Domain Name is linked to a website containing PPC links, inter alia relating to “Collectie Kunst”, “Alimentaire Usine” and “Usines De Produits”. It is the consensus view under the Regulations that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users. See also WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.9.1 Therefore, Respondent’s use of the Domain Name incorporating the Trademark to host sponsored links which capitalize on the reputation and goodwill of the Trademark cannot constitute a bona fide offering of goods or services. Further, no commercial relationship exists between Complainant and Respondent. The Panel could not establish any indication in the record that any of the circumstances as described in article 3.1 of the Regulations apply, nor that Respondent in any possible other way has rights to or legitimate interests in the Domain Name. The Panel finds that Complainant has fulfilled the obligation to establish prima facie that Respondent has no rights to or legitimate interests in the Domain Name. As a result of its failure to submit a response, Respondent has not refuted the arguments of Complainant and/or shown rights to or legitimate interests in the Domain Name. Consequently, the Panel is satisfied that Respondent has no rights or legitimate interests in Domain Name and concludes that Complainant has met the second requirement of article 2.1(b) of the Regulations. C. Registered or Used in Bad Faith When Respondent registered the Domain Name, the Trademark had already been registered and used in connection to Complainant’s activities. By using the Domain Name to host a PPC parking page that refers to hyperlinks which lead to websites of other companies, Respondent creates a likelihood of confusion with the Trademark and it likely obtains revenue from this practice. In these circumstances, the Panel concludes that Respondent has targeted Complainant for profit. This constitutes bad faith under the Regulations, see, Coöperatieve Raiffeisen-Boerenleenbank B.A. (Rabobank Nederland) v. Nguyet Dang, ND Dang,WIPO Case No. DNL2010-0074; and Scotch & Soda B.V. v. D-Max Ltd,WIPO Case No. DNL2011-0058. Against this background, the fact that Respondent has no rights to or legitimate interests in the Domain Name and apparently also registered the Domain Name for the purpose of selling it, are further indications of bad faith on the part of Respondent in its registration of the Domain Name. On all of the above grounds, the Panel finds that the requirement of registration or use in bad faith of the Domain Name pursuant to article 2.1(c) of the Regulations has been met. 7. Decision For the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name, Remco M. R. van Leeuwen 1 In view of the fact that the Regulations are to an extent based on the Uniform Domain Name Dispute Resolution Policy (“UDRP”), it is well established that cases decided under both the Regulations and the UDRP, and therefore WIPO Overview 3.0, are relevant to this proceeding (see, e.g., Aktiebolaget Electrolux v. Beuk Horeca B.V.,WIPO Case No. DNL2008-0050).
Panelist
Date: March 15, 2021
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