WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Revlon Consumer Products Corporation v. Ruo Chang/ Cao Nimade
Case No. D2010-1333
1. The Parties
The Complainant is Revlon Consumer Products Corporation of New York, United States of America, internally represented.
The Respondent is Ruo Chang of the People’s Republic of China/ Cao Nimade of Germany.
2. The Domain Name and Registrar
The disputed domain name <revlonfragrances.com> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 5, 2010. On August 6, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain name. On August 7, 2010, 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 August 12, 2010 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 August 16, 2010.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 18, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 7, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 8, 2010.
The Center appointed John Terry as the sole panelist in this matter on September 20, 2010. 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 an American company established in 1932 and has used and registered trade marks characterised by REVLON, an invented and now internationally famous trademark. The use and registrations evidenced in the Complaint relate to beauty care products and related goods including fragrances i.e. perfumery.
The disputed domain name was registered in March 2010.
5. Parties’ Contentions
The Complainant relies on its extensive promotion and sale internationally of cosmetics and related beauty care products under the trade mark REVLON, for which numerous trademark registrations have been obtained.
The disputed domain name <revlonfragrances.com> is submitted to be confusingly similar to the Complainant’s trade mark REVLON in that it incorporates the trade mark in its entirety.
According to the Complainant, the disputed domain name resolved to a website which linked to third party websites for the Complainant, wholly unrelated third party organisations and competitors providing similar goods. The Complainant asserts that the Respondent may have received fees for such a click-through arrangement.
The Complainant submits and asserts that the registrant of the disputed domain name has no rights or legitimate interests in respect of the disputed domain name and that the Respondent does not satisfy the requirements of paragraph 4(a)(ii) of the Policy.
The Complainant further asserts that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source of the Respondent’s web site and products and services on the Respondent’s website within the ambit of 4(b)(iv) of the Policy.
The Complainant requested transfer of the disputed domain name to it.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Rules require the Panel to decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). The Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(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 must establish these elements even if the Respondent does not submit a Response.
As there has been no Response, the Panel may also accept as true the factual allegations in the Complaint; see for example ThyssenKrupp USA, Inc. v. Richard Giardini, WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009).
A. Identical or Confusingly Similar
The Panel finds the disputed domain name to be confusingly similar to the trade mark REVLON in which the Complainant has established prior rights as a result of its usage and trade mark registrations. The only difference in the disputed domain name is the addition of a non-distinctive word namely “fragrances”, and the non-distinctive “.com” being the generic top-level domain designator.
The Panel concludes that the disputed domain name is confusingly similar to the registered mark of the Complainant and that the requirements of paragraph 4(a)(i) of the Policy are fulfilled.
B. Rights or Legitimate Interests
The Panel is satisfied that the uncontroverted Complaint is made out under paragraph 4(a)(ii) of the Policy because the Respondent has not at any time had relevant rights or legitimate interests.
Paragraph 4(c) of the Policy provides three non-limiting examples of circumstances under which a respondent may be able to demonstrate rights or legitimate interests under paragraph 4(a)(ii). Paragraph 4(c)(i) does not apply as the Respondent has produced no evidence of use or preparations for use of the disputed domain name with a bona fide offering of goods or services as of the date of the Complaint. Paragraph 4(c)(ii) does not apply as there is no evidence from the Respondent it had become commonly known by the disputed domain name. Paragraph 4(c)(iii) does not apply because the Respondent has not demonstrated any legitimate noncommercial or fair use of the disputed domain name. Thus not only does the Respondent fail to establish circumstances within any of the examples in paragraph 4(c) but also the Respondent fails generally to rebut the Complainant’s prima facie case as to evidence applicable to paragraph 4(a)(ii).
It is well-settled that maintaining a website that merely contains links to other websites trading off of a complainant’s marks is not legitimate use or showing a bona fide offering of goods; see for example Computer Doctor Franchise Systems v. The Computer Doctor, NAF Claim No. 95396..
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy set forth circumstances, which if present, shall be held to be registration and use in bad faith. Paragraph 4(b)(iv) is relevant to this case.
The Panel finds it inconceivable that the Respondent was unaware of the Complainant’s famous trademark REVLON when it registered the disputed domain name. Such registration and any use (absent proof of rights or legitimate interests) represent bad faith registration and use; see for example DaimlerChrysler Corporation v. Web4Comm SRL Romania, WIPO Case No. DRO2006-0003.
In Compagnie Générale des Etablissements Michelin CGEM – Michelin & Cie, Michelin Recherche et Technique S.A. v. Horoshiy Inc., WIPO Case No. D2004-0752, the panelist stated: “the disputed domain names are used for “click-through” revenue generating sites which provide income to the Respondent by inducing Internet users to click through to sponsored links. It is the Panel’s opinion that the purpose of the Respondent’s use of domain names containing the Complainants’ famous trademarks is merely to capture the Complainants’ customers who are seeking the Complainants’ products and/or services, and to re-direct them to other websites. Such use of domains is neither legitimate, nor of good faith. Using a domain name to intentionally attract, for commercial gain, Internet users to a website by creating confusion with a complainant’s mark is evidence of bad faith registration under the Policy, Paragraph 4(b)(iv).”
In the case of Movado LLC v. Titan Net, WIPO Case No. D2006-0824, the panelist stated the following: “The Panel accepts that it is highly likely that the Respondent is deriving click-through revenue from the website. This brings the deception within paragraph 4(b)(iv) of the Policy and constitutes evidence of both bad faith registration and bad faith use”.
In the present case, it seems likely that the Respondent gained click-through revenue from its website, but in any event its inclusion of a famous trademark as the characterizing part of the disputed domain name shows bad faith registration and use.
Based on the evidence and unrefuted contentions of the Complainant, the Panel finds the third element of the Policy established by the Complaint.
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 <revlonfragrances.com> be transferred to the Complainant.
Dated: October 4, 2010