WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Revlon Consumer Products Corporation v. Luce DiPietro
Case No. D2012-1442
1. The Parties
Complainant is Revlon Consumer Products Corporation of New York, United States of America (“USA”), represented internally.
Respondent is Luce DiPietro of Burbank, California, USA.
2. The Domain Name and Registrar
The disputed domain name <qrrevlonwalk.com> (the “Domain Name”) is registered with Wild West Domains, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 16, 2012. On July 17, 2012, the Center transmitted by e-mail to the Registrar a request for registrar verification in connection with the Domain Name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that 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 July 25, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was August 14, 2012. Respondent did not submit any formal response. Accordingly, the Center notified Respondent’s default on August 16, 2012. Respondent sent to the Center an informal communication on August 17, 2012, where it offered to sell the Domain Name.
The Center appointed Robert A. Badgley as the sole panelist in this matter on August 23, 2012. 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 following facts are alleged in the Complaint, are often supported by annexes to the Complaint, are undisputed by Respondent, and in any event are found by the Panel to be plausible.
Complainant is a leading manufacturer of cosmetic and beauty products and other goods. For decades, Complainant has sold products under the mark REVLON in numerous countries. Complainant holds numerous registered trademarks for the REVLON mark. The Panel has no difficulty accepting Complainant’s allegation that REVLON is a famous mark.
Complainant also sponsors a charity run/walk event each year to raise funds for women’s cancer research. This event is featured at one of Complainant’s websites, located at “www.revlonrunwalk.org”.
The Domain Name was registered on February 27, 2012. The Domain Name resolves to a website which includes sponsored links to the websites of various companies, some of whom offer products in competition with those offered by Complainant.
Complainant sent Respondent a cease-and-desist letter on June 25, 2012. Having received no response, Complainant sent a follow-up letter on July 3, 2012. On July 5, 2012, Respondent’s attorney advised Complainant that Respondent would accept USD 3,000 to transfer the Domain Name and resolve the dispute. This offer was rejected on the same day by Complainant. On July 11, 2012, Respondent advised that it would accept USD 1,500 as a complete settlement. This Complaint followed five days later.
5. Parties’ Contentions
The salient facts alleged by Complainant are set forth in the previous section, and the relevant arguments raised by Complainant will be set forth below in the appropriate places of the Discussion and Findings section.
Respondent did not dispute any of the allegations made by Complainant.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
There is no dispute that Complainant holds rights in the famous and fanciful mark REVLON. The Domain Name incorporates that famous and distinctive mark and adds the letters “qr” in front and “walk” in back of the mark in the second-level domain. The Panel concludes that these additional letters diminish only slightly the confusing similarity between Complainant’s mark and the Domain Name. Complainant asserts that “qr” is a common abbreviation in the marketing field, denoting “quick response.” This may be so, but in any event these two letters do not overcome the fact that the dominant portion of the Domain Name is the mark REVLON. The Panel also concludes that the word “walk” does little or nothing to reduce the confusing similarity between the mark and the Domain Name, particularly since Complainant sponsors an annual charity walk event. Taken as a whole, the Domain Name is confusingly similar to the REVLON mark in which Complainant has rights.
Accordingly, the Panel finds that Policy, paragraph 4(a)(i) is satisfied.
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish his rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are 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.
Complainant bears the burden of proof on the “rights or legitimate interests” issue (as it does for all three elements of the Policy). Louis de Bernieres v. Old Barn Studios Limited, WIPO Case No. D2001-0122. Nevertheless, the panel in PepsiCo, Inc. v. Amilcar Perez Lista d/b/a Cybersor, WIPO Case No. D2003-0174, correctly observed: “A [r]espondent is not obliged to participate in a domain name dispute proceeding, but its failure to do so can lead to an administrative panel accepting as true the assertions of a complainant which are not unreasonable and leaves the respondent open to the legitimate inferences which flow from the information provided by a complainant.” As noted above, Respondent did not file a Response and hence did not effectively rebut any of Complainant’s assertions.
There is no evidence that Respondent has ever been authorized to use Complainant’s mark in a domain name or otherwise. Likewise, there is no evidence that Respondent is commonly known by the Domain Names, or has made substantial preparations to use the Domain Name in connection with a bona fide offering of goods or services. Rather, Respondent’s website contains links to competitors of Complainant, and Respondent’s only communications with Complainant were to demand payment for the Domain Name.
Accordingly, the Panel finds that Policy, paragraph 4(a)(ii) is satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) that 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) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel finds bad faith under Policy paragraphs, 4(b)(i) and 4(b)(iv). As respects paragraph 4(b)(i), Respondent answered Complainant’s cease-and-desist letter with a demand for USD 3,000. Respondent has not alleged or documented that this amount reflected out-of-pocket expenses directly related to the Domain Name.
As respects paragraph 4(b)(iv), Respondent’s site contains links to commercial sites of third parties, some of whom compete with Complainant. It is fair to infer that Respondent derives financial gain via click-through revenues. The Panel therefore concludes that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion between Complainant’s mark and the Domain Name.
Accordingly, the Panel finds that Policy, paragraph 4(a)(iii) is satisfied.
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 <qrrevlonwalk.com> be transferred to Complainant.
Robert A. Badgley
Dated: August 24, 2012