Complainant is Lancôme Parfums Et Beauté Et Compagnie of Paris, France represented by Dreyfus & associés, France.
Respondent is Kimbeomsung, of Kwacheon-Shi, the Republic of Korea. 2. The Domain Name and Registrar
The disputed domain name is registered with ROTLD (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on February 13, 2015. On February 13, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 16, 2015, 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.
The Center verified that 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 Respondent of the Complaint, and the proceedings commenced on February 18, 2015. In accordance with the Rules, paragraph 5(a), the due date for a Response was March 10, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 11, 2015.
The Center appointed Dina Leytes as the sole panelist in this matter on March 16, 2015. 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.
The proper language of a proceeding is generally accepted as the language of the registration agreement. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (the “WIPO Overview, 2.0”), at paragraph 4.3 and the cases cited therein. As confirmed by the Registrar, the language of the registration agreement is English. Therefore, in accordance with the Rules, paragraph 11, the Panel renders its decision in English. 4. Factual Background
Complainant is a subsidiary of the cosmetics company L’Oreal, which has global operations in more than 130 countries. The trademark LANCÔME was first used in in 1935. The LANCÔME trademark is in wide use throughout Europe, including Romania, where the Registrar of the disputed domain name is located. It has been in extensive use in the Republic of Korea, where Respondent is located, since 1993. Complainant is the owner of the domain name , which corresponds to a website dedicated to promoting LANCÔME products in the Republic of Korea. Complainant is the owner of the trademark LANCÔME in numerous jurisdictions worldwide and holds International Registration Number 164395 for the word mark LANCÔME under the WIPO Madrid International Trademark System, with a registration date of October 6, 1952 in International Classes 3 and 21.
Respondent appears to be an individual or entity located in the Republic of Korea.
According to the verification information provided by the Registrar, the disputed domain name was registered on December 16, 1999. It is currently inactive, resolving to a blank page. 5. Parties’ Contentions A. Complainant
Complainant alleges that the disputed domain name fully incorporates and is confusingly similar to its well-known trademark LANCÔME. Complainant further alleges that the use of the circumflex accent on the letter “O” in Complainant’s mark and the addition of the .ro country code Top Level Domain in the disputed domain name are not relevant in the determination of confusing similarity.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name because Respondent is not known by the LANCÔME trademark, is not affiliated with Complainant in any way, and has not been authorized to use and register Complainant’s LANCÔME trademark by Complainant. Complainant states that registration of the LANCÔME trademark preceded the registration of the disputed domain name by many years.
Complainant also alleges that the disputed domain name was registered and is being used in bad faith. Complainant states that it is inconceivable that Respondent was not aware of Complainant’s famous LANCÔME trademark when Respondent registered the disputed domain name and that Respondent’s knowledge of Complainant’s trademark rights is evidence of Respondent’s bad faith registration. Complainant points out that Respondent is known for registering domain names that include the trademarks of third parties and cites to Pizza Hut International, LLC v. Kim Beom Sung,WIPO Case No. DRO2002-0003 and Kentucky Fried Chicken International Holdings, Inc. v. Kimbeomsung,WIPO Case No. DRO2002-0004. Complainant alleges that Respondent’s use constitutes passive holding, which under the circumstances constitutes bad faith use. Complainant further maintains that the doctrine of laches has generally been recognized as inapplicable under the UDRP. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, a complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(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.
The complainant bears the burden of proof on each of these elements. If a respondent does not submit a response to the complaint, a panel may draw appropriate inferences from such a default. However, the complainant must still support its assertions with actual evidence to succeed in a UDRP proceeding. See WIPO Overview 2.0 at paragraph 4.6 and the cases cited therein. A. Identical or Confusingly Similar
The Panel finds that Complainant has trademark rights in the well-known mark LANCÔME. The Panel further finds that the disputed domain name is confusingly similar to Complainant’s LANCÔME trademark. The disputed domain name incorporates Complainant’s trademark in its entirety. The absence of the circumflex accent in the disputed domain name and the registration of a .ro country code Top Level Domain may be disregarded as technical requirements that do not change the confusing similarity determination here.
Accordingly, the Panel finds that the requirements of paragraph 4(a)(i) of the Policy have been met by Complainant. B. Rights or Legitimate Interests
To prevail, Complainant must make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Paragraph 4(c) of the Policy provides a non-exhaustive list of circumstances that may be used to show a respondent’s rights or legitimate interests in a domain name:
(i) before any notice to the respondent of the dispute, the respondent’s 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) the respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) the respondent is 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.
The fact that the disputed domain name resolves to a blank page does not indicate that Respondent has used or made demonstrable preparations to use the disputed domain name with any bona fide offering of goods or services. Nor is there is there any evidence to show that Respondent has any independent basis for using the term “lancome” or that Complainant has authorized Respondent’s use of the LANCÔME mark. The Panel finds that Complainant has established a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. The prima facie case presented by Complainant is sufficient to shift the burden of production to Respondent to demonstrate that it has rights or legitimate interests in the disputed domain name. However, by failing to file a response, Respondent has not presented any evidence of any rights or legitimate interests it may have in the disputed domain name.
Accordingly, the Panel finds that the requirements of paragraph 4(a)(ii) of the Policy have been met by Complainant. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances that may be used to show evidence of a respondent’s bad faith registration and use:
(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 that complainant, for valuable consideration in excess of respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) 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 respondent has engaged in a pattern of such conduct; or
(iii) respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, Internet users to respondent’s web site 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 respondent’s web site or location or of a product or service on respondent’s web site or location.
The Panel finds that Complainant has demonstrated that Respondent registered and is using the disputed domain name in bad faith. As stated above, the disputed domain name is identical to Complainant’s LANCÔME trademark, which is well-known worldwide. The Panel notes that the two domain name decisions cited by Complainant, Pizza Hut International, LLC v. Kim Beom Sung,WIPO Case No. DRO2002-0003 and Kentucky Fried Chicken International Holdings, Inc. v. Kimbeomsung,WIPO Case No. DRO2002-0004, both resulted in findings of registration and use in bad faith by Respondent and transfers of the disputed domain names from Respondent to the complainants. The Panel is satisfied that Complainant has demonstrated that Respondent has now engaged in a pattern of abusive bad faith conduct pursuant to paragraph 4(b)(ii) of the Policy.
As previous panels have held, the fact that a domain name is inactive does not prevent a finding of bad faith registration and use. See, e.g. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. Indeed, in the case of an internationally famous trademark such as LANCÔME, the incorporation of such a trademark “into a domain name by a registrant having no plausible explanation for doing so may be, in and of itself, an indication of bad faith.” See Intel Corporation v. The Pentium Group,WIPO Case No. D2009-0273.
In addition, the fact that Complainant waited over 15 years from the registration date of the disputed domain name to bring this proceeding has no bearing here. Complainant’s trademark rights in LANCÔME date back to 80 years ago. Having failed to reply to the Complaint, Respondent has not advanced any argument that it has been injured as a result of Complainant’s delay in initiating this proceeding.
Accordingly, the Panel finds that the requirements of paragraph 4(a)(iii) of the Policy have been met by Complainant. 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 Complainant.
Dina Leytes
Sole Panelist
Date: March 26, 2015
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