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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Jafra Cosmetics, S.A. de C.V. v. Jafraproducts Admin

Case No. D2006-0416

 

1. The Parties

Complainant is Jafra Cosmetics, S.A. de C.V., Colonia Tlacopac, Mexico, represented by Seyfarth Shaw LLP, United States of America.

Respondent is Jafraproducts Admin, Santa Ana, California, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <jafraproducts.biz> is registered with Go Daddy Software.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 1, 2006. On April 4, 2006, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On April 4, 2006, Go Daddy Software transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 April 7, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was April 27, 2006. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 28, 2006.

The Center appointed Eduardo Machado as the sole panelist in this matter on May 5, 2006. 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 owns trademark registrations for the JAFRA trademark in the United States. The older of the registrations issued in 1959.

For 50 years Complainant has continuously used the trademark JAFRA in the United States in connection with a wide variety of cosmetics, toiletries, and other personal care products that are sold directly to consumers through consultants.

Complainant’s United States licensee Jafra Cosmetics currently distributes JAFRA products in the United States through a consultant force of approximately 64,000 persons that annually achieves sales of JAFRA products in excess of $95,000,000.

Complainant is also the owner of the domain name <jafra.com>. One of the pages accessible at <jafra.com> is entitled “jafrabiz”.

Respondent registered the domain name at issue on December 23, 2003. The disputed domain name initially resolved to a website that purported to sell website hosting and domain name services. Later on the domain name resolved to a website that offered to sell Human Growth Hormone (“HGH”), an anti-aging product. The website also provided a link to “www.adultfriendfinder.com”, a site that was described on Respondent’s website as the “world’s largest SEX personals” site.

Complainant’s counsel corresponded with Respondent on several occasions demanding that Respondent cease use of the disputed domain name and transfer it to Complainant, but Respondent never responded to any such correspondence.

 

5. Parties’ Contentions

A. Complainant

i. Complainant argues that it has been the exclusive owner of the strong JAFRA mark.

ii. Complainant argues that its United States licensee Jafra Cosmetics has used the JAFRA mark on the Internet for many years prior to Respondent’s registration of the disputed domain name.

iii. Complainant argues that the JAFRA trademark is a fanciful mark consisting of a coined term formed by the first several letters of the first names of Jan and Frank Day, the two founders of the JAFRA business in the United States, at a website accessible through the domain name <jafra.com>.

iv. Complainant argues that when Respondent registered the disputed domain name, it was aware of Complainant and its use of the JAFRA marks in the United States.

v. Complainant argues that Respondent initially used the disputed domain name <jafraproducts.biz> to attract Internet users looking for products sold under Complainant’s JAFRA mark, and that the website reflected Respondent’s awareness of Complainant’s use of the JAFRA mark in the United States.

vi. Complainant argues that Respondent also used the domain name in dispute to attract Internet users looking for products sold under Complainant’s JAFRA mark, to a website that offered to sell Human Growth Hormone.

vii. Complainant argues that Respondent began using the disputed domain name to attract Internet users looking for products sold under Complainant’s JAFRA mark to an “Adult Sex Swing Chat” website that offers adult entertainment and dating services.

viii. Finally, Complainant argues that when Respondent registered the disputed domain name, it was on constructive notice of Complainant’s rights in the JAFRA mark in the United States by virtue of the federal registration of the JAFRA mark, and admittedly has actual notice of the mark and the restrictions that Complainant and its United States licensee placed on Jafra consultants’ use of the mark, and its registration and use of the disputed domain name was based upon its intent to trade upon the goodwill in Complainant’s mark in the United States by diverting Internet users looking for products sold under Complainant’s JAFRA mark to Respondent’s website.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

Although Respondent did not reply, it is proper for the Panel to examine Complainant’s contentions having regard to both the Policy and the Rules.

A. Identical or Confusingly Similar

Complainant is correct in claiming that the domain name <jafraproducts.biz> is confusingly similar to Complainant’s trademark JAFRA, which is a registered mark in the United States.

The addition of a descriptive term such as “products” is not sufficient to distinguish a mark from its adopter. Britannia Building Society v. Britannia Fraud Prevention, WIPO Case No. D2001-0505 (“the incorporation of a trademark in its entirety is sufficient to establish that a domain name is identical or confusingly similar to Complainant’s registered mark”). In this case, the trademark JAFRA is clearly the most prominent element in this combination, and that may cause the public to think that the domain name <jafraproducts.biz> is somehow connected with the owner of the JAFRA trademark.

Moreover, the addition of the descriptive term “products” creates a likelihood of confusion because that term falsely suggests that Respondent sells products under the JAFRA mark.

The Panel therefore finds that, as the domain name incorporates Complainant’s JAFRA mark plus the descriptive term “products”, <jafraproducts.biz> is confusingly similar to Complainant’s JAFRA trademark.

B. Rights or Legitimate Interests

Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name at issue as enumerated in paragraph 4(c) of the Policy.

Complainant alleges that given the fanciful nature of the JAFRA mark and its registration and use in the United States long prior to Respondent’s registration and use of the disputed domain name, and Respondent’s admitted actual knowledge of Complainant’s rights, Respondent cannot possibly show that before any notice to it of this dispute, it engaged in a use of the disputed domain name in connection with a bona fide offering of goods or services within the meaning of paragraph 4(c)(i) of the Policy.

As the Respondent has not put forward any evidence to rebut the Complainant’s prima facie showing, the Panel finds that the second element of the Policy has been established.

C. Registered and Used in Bad Faith

The Panel notes the following particular circumstances of this case:

(i) Complainant’s trademark has a strong reputation and is widely known in the United States;

(ii) Respondent has provided no evidence whatsoever of any good faith use by it of the disputed domain name, and has not participated in this proceeding even though properly notified thereof;

(iii) the disputed domain name at present resolves to a website entitled “Adult Sex Swingers Chat” which advertises “adult alternative adult sex swingers personals” and has in the past resolved to a commercial website in which Respondent tried to sell its domain and website hosting services to Jafra consultants, both of which demonstrate bad-faith use and registration under paragraph 4(b)(iv) because Respondent has creates a likelihood of confusion, including initial interest confusion, as to the source, sponsorship, affiliation, or endorsement of its website.

In light of these circumstances, the Panel makes the reasonable inference that Respondent was aware of Complainant and its trademark and that the Respondent registered and used the disputed domain name within the meaning of paragraph 4(b)(iv) of the Policy.

The third element of the Policy has been met.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <jafraproducts.biz> be transferred to Complainant.


Eduardo Machado
Sole Panelist

Dated: May 18, 2006

 

Источник информации: https://internet-law.ru/intlaw/udrp/2006/d2006-0416.html

 

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