WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lancôme Parfums Et Beauté & Compagnie v. Zhaoyanan
Case No. D2014-0964
1. The Parties
The Complainant is Lancôme Parfums Et Beauté & Compagnie of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Zhaoyanan of Shijiazhuang, Hebei, China.
2. The Domain Name and Registrar
The disputed domain name <lancome123.com> is registered with Xin Net Technology Corp. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 6, 2014. On June 6, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 9, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. On June 10, 2014, the Center transmitted an email to the parties in both Chinese and English language regarding the language of the proceeding. On June 12, 2014, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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 the Respondent of the Complaint, and the proceedings commenced on June 18, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 8, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 9, 2014.
The Center appointed Douglas Clark as the sole panelist in this matter on July 17, 2014. 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 multinational cosmetics company. The Complainant is the registered proprietor of the trademark LANCÔME for cosmetics around the world, including in China.
The disputed domain name was registered on March 3, 2014.
The disputed domain name is being used to sell Lancôme branded cosmetic products which may not have originated from Lancôme. The products are advertised on the website under the disputed domain name, principally in Chinese, but with the use of some English or French words.
On the page to which the disputed domain name resolves, the trademark LANCÔME appears in large letters on the top left hand side of the webpage. There is a copyright notice at the bottom of the page:
It also stated in Chinese at the bottom of the page that the page is the “Lancôme International Website”.
5. Parties’ Contentions
The Complainant’s contentions are set out below.
The Complainant submits that the disputed domain name <lancome123.com> consists of the trademark LANCÔME and the numbers “123”.
The disputed domain name is, therefore, made up of the Complainant’s trademark and figures as a suffix. It is thereby confusingly similar to the Complainant’s trademark.
The Complainant further submits that the Respondent has no rights or legitimate interests in the disputed domain name. It is not commonly known by the name Lancôme. It has received no consent or license from the Complainant to use the Complainant’s trademark in the disputed domain name.
The Complainant submits that the disputed domain name was registered and is being used in bad faith with the intention of attracting Internet users to the website.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
The language of the registration agreement for the disputed domain name is Chinese. Paragraph 11(a) of the Rules provides that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The Complainant requested the language of the proceeding to be English on the grounds that the costs of translation would be excessive given the nature of the proceeding, that the disputed domain name used Latin characters and, that some English words were used on the website. The Respondent did not respond to this request.
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Chinese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of the proceeding lies with this Panel. As a first point, this Panel does not consider the Complainant’s submission that it would be unduly burdensome to translate the Complaint into Chinese. The Complainant operates in China. In the Panel’s view, it must have numerous management staff conversant in Chinese. The fact the disputed domain name is in latin characters is not a particular relevance. The use of English on the site under the disputed domain name is minimal.
Nevertheless, this Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008-1191, that a respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceeding “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint.”
Further, as set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delay in this matter. Further, the Respondent claims on the website under the disputed domain name to be the Complainant by use of the Complainant’s trademark and copyright notices.
All of the factors lead the Panel to determine to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English.
6.2. Substantive Decision
The Panel finds that this is a clear case of cybersquatting that the UDRP was designed to stop. The Panel agrees fully with the Complainant’s arguments and accordingly does not consider it necessary to write a long decision.
A. Identical or Confusingly Similar
The disputed domain name <lancome123.com> is made up of the Complainant’s registered trademark LANCÔME, the numbers “123” and the generic Top-Level Domain (gTLD) “.com”. It is confusingly similar to the Complainant’s registered trademark.
Paragraph 1.2 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (the “WIPO Overview 2.0”), sets out the test for determining confusing similarity. Paragraph 1.2 provides (in part):
“The threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion. In order to satisfy this test, the relevant trademark would generally need to be recognizable as such within the domain name, with the addition of common, dictionary, descriptive, or negative terms […] typically being regarded as insufficient to prevent threshold Internet user confusion […].”
The first element of the Policy is made out.
B. Rights or Legitimate Interests
The Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the dispute domain name. The Respondent has not responded to the Complaint to assert any rights or legitimate interests in the disputed domain name. Clearly, none of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can prove its rights or legitimate interests, are present in this case.
The Panel finds that the second element of the Policy is made out.
C. Registered and Used in Bad Faith
For the similar reasons as those above, the Panel has no hesitation in finding that the disputed domain name was registered in bad faith and is being used in bad faith.
This case falls within paragraph 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
“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.”
As previously noted, the Respondent claims on the website under the disputed domain name to be the Complainant by use of the Complainant’s trademark and copyright notices.
Moreover, the sale of possibly counterfeit Lancôme products on the website clearly falls under this sub-paragraph.
The Panel finds that the third element of the Policy is made out.
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 <lancome123.com> be transferred to the Complainant.
Date: July 30, 2014