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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Bazarchic SA v. Belize Domain WHOIS Service Lt

Case No. D2008-0839

 

1. The Parties

The Complainant is Bazarchic SA, of Clichy, France, represented by Cabinet de Jean-Paul Montenot, Selarl, France.

The Respondent is Belize Domain WHOIS Service Lt, City of Belmopan, of Belize.

 

2. The Domain Name and Registrar

The disputed domain name <bazarchik.com> is registered with Intercosmos Media Group, Inc. d/b/a directNIC.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 30, 2008. On May 30, 2008, the Center transmitted by email to Intercosmos Media Group, Inc. d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On May 30, 2008, Intercosmos Media Group, Inc. d/b/a directNIC.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Complainant filed an amendment to the Complaint on June 18, 2008. 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”), 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 June 18, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was July 8, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on July 11, 2008.

The Center appointed Dennis A. Foster as the sole panelist in this matter on July 21, 2008. 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

The Complainant is a French company that arranges for the sale of luxury items through a web site found at its domain name, <bazarchic.com>, which was registered on November 16, 2005. The Complainant’s trademark, BAZARCHIC, is registered in France (Reg. No. 06 3 408 882, February 8, 2006).

The Respondent owns the domain name in question, which was registered on November 25, 2005. The web site situated at that name redirects Internet users to other sites where they might acquire merchandise ostensibly similar to that offered by the Complainant, but of lesser quality and at lower prices.

 

5. Parties’ Contentions

A. Complainant

The Complainant is a French company that has sold luxury goods through its web site, “www.bazarchic.com”, since November 16, 2005. The Complainant’s web site gained fame within a few months of beginning operation.

The Complainant owns French trademark registrations for the mark, BAZARCHIC.

The Respondent registered the disputed domain name on November 25, 2005.

The disputed domain name is confusingly similar to the Complainant’s trademark because only the last letter is different.

The Respondent uses the disputed domain name to redirect consumers to other web sites which offer products similar to those sold by the Complainant, but of lesser quality – some being apparently reproductions of name-brand items – and at reduced prices. The Complainant does not want its offerings confused with such low quality goods, especially since it intends to open its web site to the complete international market.

The disputed domain name was registered and is being used in bad faith as the Respondent has intentionally attempted to attract for commercial gain Internet users to its web site and to other web sites selling counterfeits, by creating a likelihood of confusion with the Complainant’s mark.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

In accordance with Policy paragraphs 4(a)(i), (ii) and (iii), the Complainant may succeed in these administrative proceedings and obtain ownership of the disputed domain name, <bazarchik.com>, if the Complainant can prove that:

– The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

– The Respondent has no rights or legitimate interests in respect of the disputed domain name; and

– The disputed domain name was registered and is being used by the Respondent in bad faith.

Because the Respondent has not filed a response in this proceeding, the Panel will draw all reasonable inferences stemming from the Complainant’s reasonable contentions. See Garage Records, Inc. v. Garage Records, NAF Case No. FA95071 (“As a result of the Respondent’s failure to respond, all reasonable inferences of fact in the Complaint will be deemed true.”); and Randstad General Partner (U.S.), LLC v. Domains For Sale For You, WIPO Case No. D2000-0051.

A. Identical or Confusingly Similar

The Complainant must first show that it has rights in the mark upon which its claim is based. The Complainant has satisfied this requirement by presenting the Panel with uncontested evidence of its valid French trademark registration for the mark, BAZARCHIC. See for example RH-Interactive Jobfinance v. Mooburi Services, NAF Case No. FA137041 (“Complainant has established that it has rights in the JOBFINANCE mark through the French trademark registration.”); and also Consorzio del Formaggio Parmigiano Reggiano v. La casa del Latte di Bibulic Adriano, WIPO Case No. D2003-0661.

The Complainant next contends that the disputed domain name, <bazarchik.com>, is confusingly similar to the aforementioned mark. In comparing the name to the mark, the Panel can see that the only difference is that a “k” is substituted for the final “c”. Furthermore, the ending “c” in “chic” is pronounced as would be a “k,” so that “chik” sounds just the same as “chic”. Ergo, a reasonable person would find the term “bazar chik” to be confusingly similar, visually as well as audibly, to the term “bazar chic”. As a result, the Panel determines that the minimal variance between the disputed domain name and the Complainant’s trademark does not prevent confusing similarity between them. See Xerox Corp. v. Stonybrook Investments, Ltd, WIPO Case No. D2001-0380 (where the panel found the disputed domain name, <zerox.com>, to be confusingly similar to the trademark XEROX, stating “…an average internet user… might accidentally spell it with the letter Z instead of X at the beginning of the word, merely because of the way the Complainant’s trademark is pronounced.”); and Pfizer Inc., A Delaware Corporation v. RE THIS DOMAIN FOR SALE - EMAIL, WIPO Case No. D2002-0409 (finding that <phiser.com> is confusingly similar to PFIZER).

Therefore, the Panel holds that the Complainant has succeeded in proving that the disputed domain name is identical or confusingly similar to a trademark or service mark in which it owns rights.

B. Rights or Legitimate Interests

Under the Policy, the Complainant is charged with proving that the Respondent has no rights or legitimate interests in the disputed domain name. However, it has become almost axiomatic, per prior UDRP decisions, that a complainant who has valid rights in a trademark to which the disputed domain name is identical or confusingly similar need make only a prima facie showing to switch the burden onto the Respondent to come forward with evidence demonstrating such rights or interests. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions Section 2; AOL LLC v. Jordan Gerberg, NAF Case No. FA780200 (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interests in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”); and Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, NAF Case No. FA741828.

In reviewing the Complainant’s contentions in this case, the Panel draws the reasonable inference that the Complainant did not license or otherwise authorize the Respondent’s use of the Complainant’s mark in any manner, and so concludes that the Complainant has made the requisite minimal showing to establish its prima facie case on this matter.

The Respondent’s ability to rebut said prima facie case is, to say the least, severely hampered by its failure to file a Response. The Panel finds nothing otherwise in the record to suggest that the Respondent, or a company it owns, is commonly known by the disputed domain name, so the rationale supporting a legitimate interest in a domain name, as cited in Policy paragraph 4(c)(ii), does not help the Respondent. Moreover, the Respondent fails to meet the criteria set forth in paragraphs 4(c)(i) and 4(c)(iii) that might demonstrate its rights and legitimate interests in the disputed domain name, since the Respondent’s use of the name to sell products that are similar to (if more shoddy than) those offered by the Complainant – as alleged by the Complainant and accepted by the Panel – does not conform to the requirements of those paragraphs. See Option One Mortgage Corporation v. Option One Lending, WIPO Case No. D2004-1052 (“Respondent’s use of a confusingly similar Domain Name on a website offering for sale overlapping products and services is neither a bona fide offering of goods or services nor a legitimate non-commercial or fair use pursuant to the Policy.”); and Reed Elsevier Properties Inc. and Reed Elsevier Inc. v. Weekly Publishers, NAF Case No. FA151536. Thus, the Respondent has not met its burden to rebut Complainant’s prima facie case showing.

Accordingly, the Panel concludes that the Complainant has proved that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Pursuant to the Policy, it is up to the Complainant to show that the Respondent acted in bad faith in registering and using the disputed domain name. Among other ways in which the Complainant might meet this burden, the Policy suggests a circumstance in paragraph 4(b)(iv), which if found to be true by the Panel, would sustain a finding by the Panel in the Complainant’s favor on this issue:

by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location.

The Complainant has shown that the Respondent is using the disputed domain name to intentionally market, for commercial gain, products that are “knock-offs” of luxury items that the Complainant might offer through its web site. Since that domain name is confusingly similar to the Complainant’s mark, Internet user confusion would naturally arise concerning the Complainant’s involvement, whether as to source, sponsorship, affiliation or endorsement, with the Respondent’s enterprise. Therefore, the Panel finds that the Respondent’s conduct falls squarely within the parameters set forth in paragraph 4(b)(iv). See for example G.D. Searle & Co. v. Celebrex Drugstore, NAF Case No. FA123933; and Kmart of Michigan, Inc. v. Azra Khan, NAF Case No. FA127708.

As reasoned above, the Panel rules that the Complainant has proved that the Respondent registered and is using the disputed domain name in bad faith.

 

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, <bazarchik.com>, be transferred to the Complainant.


Dennis A. Foster
Sole Panelist

Dated: August 4, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0839.html

 

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