The Complainant is Reworld Media Magazines, France, represented by Novagraaf France, France.
The Respondent is Proxy Protection LLC, United States of America / Ahmed Asnad, Morocco.
The disputed domain name <topsanteetbienetre.com> is registered with DreamHost, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 28, 2020. On February 28, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 3, 2020, 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 March 3, 2020, 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 March 6, 2020.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 10, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 30, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 31, 2020.
The Center appointed Tobias Zuberbühler as the sole panelist in this matter on April 7, 2020. 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 Complainant is Reworld Media Magazines, a French simplified joint stock company. The Complainant issues a magazine named “TOP Santé” dedicated to health and welfare, both in paper and in digital format under its “www.topsante.com” website.
The Complainant owns the TOP SANTE trademark in France (e.g. French registration No. 1547341, registered on July 20, 1987) and internationally (e.g. International trademark No. 567626, registered on March 11, 1991).
The disputed domain name was registered on March 7, 2013, and resolves to a website which displays various articles about health and nutrition.
The Complainant alleges that it has satisfied all elements of the Policy, paragraph 4.
The Respondent did not reply to the Complainant’s contentions.
On the basis of the facts and evidence introduced by the Complainant, and with regard to paragraphs 4(a), (b) and (c) of the Policy, the Panel concludes as follows:
The Complainant has submitted evidence to demonstrate its registered rights in the TOP SANTE trademark in France and internationally.
The TOP SANTE trademark is reproduced in the disputed domain name <topsanteetbienetre.com>.
A domain name is “identical or confusingly similar” to a trademark for the purposes of the Policy when the domain name includes the trademark, or a confusingly similar approximation, regardless of other terms in the domain name (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662; WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7).
The disputed domain name includes the Complainant’s TOP SANTE trademark in its entirety together with the dictionary addition “et bien être”, the French term for “and well being” and is therefore identical or confusingly similar, and the Complainant has fulfilled the requirements of paragraph 4(a)(i) of the Policy.
There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name. The Complainant contends that the Respondent is neither affiliated with the Complainant nor making any bona fide use of the disputed domain name.
UDPR panels have largely held that a disputed domain name consisting of a trademark plus an additional term cannot constitute fair use, if it effectively impersonates or suggests sponsorship or endorsement by the trademark owner (WIPO Overview 3.0, section 2.5.1).
The Respondent uses the disputed domain name to host a website that offers the same or similar services as the Complainant. Given the contents of this website, which also uses the same pink color as the Complainant, it is likely that the Respondent intends to suggest endorsement or affiliation with the Complainant’s TOP SANTE trademark.
In view of the above, the Panel concludes that there are no indications of any rights or legitimate interests of the Respondent in respect of the disputed domain name.
Based on the Complainant’s case file, the Panel finds that the Complainant, having made out a prima facie case which remains unrebutted by the Respondent, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.
Under the circumstances of this case, it can be inferred that the Respondent was aware of the Complainant’s trademark when registering the disputed domain name.
The evidence submitted by the Complainant supports the finding that the Respondent is engaged in an attempt to pass itself off as the Complainant and to attract Internet users to its website for its own commercial benefit. The Respondent therefore uses the disputed domain name in bad faith (see Claudie Pierlot v. Yinglong Ma, WIPO Case No. D2018-2466).
Accordingly, the Complainant has also fulfilled paragraph 4(a)(iii) of the Policy.
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 <topsanteetbienetre.com> be transferred to the Complainant.
Date: April 16, 2020