WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Loris Azzaro B.V. v. Bhavin Vora
Case No. D2015-1487
1. The Parties
The Complainant is Loris Azzaro B. V. of Apeldoorn, Netherlands, represented by Tmark Conseils, France.
The Respondent is Bhavin Vora of Ahmedadbad, Gujarat, India.
2. The Domain Name and Registrar
The disputed domain name <azaro.club> is registered with GoDaddy com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 20, 2015. On August 21, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 21, 2015, 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.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 31, 2015. In accordance with the Rules, paragraph 5, the due date for Response was September 20, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 21, 2015. On September 22, 2015 and September 24, 2015, the Center received informal communication from the Respondent. A formal Response was not submitted.
The Center appointed Eduardo Machado as the sole panelist in this matter on September 30, 2015. 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 Dutch Company incorporated in the Netherlands and is one of the world leaders in the field of perfumes, under the AZZARO mark, intensively used worldwide.
The Complainant owns many AZZARO marks worldwide, as noted above:
- Indian Registration for AZZARO (Registration No. 480618), registered November 4, 1987;
- French Registration for AZZARO (Registration No. 1347241), registered June 17, 1976;
- International Registration for AZZARO (Registration No. 431801), registered August 9, 1977, having effects in Albania, Armenia, Austria, Azerbaijan, Bosnia and Hezergovina, Bulgaria, Benelux, Belarus, Switzerland, Cuba, Czech Republic, Germany, Algeria, Egypt, Spain, Hungary, Italy, Kenya, Kyrgyzstan, Democratic People’s Republic of Korea, Kazakhstan, Liechtenstein, Liberia, Lesotho, Morocco, Monaco, Republic of Moldova, The former Yugoslav Republic of Macedonia, Mongolia, Mozambique, Portugal, Romania, Serbia, Russian Federation, Sudan, Slovakia, Sierra Leone, San Marino, Swaziland, Tajikistan, Ukraine, Uzbekistan, Viet Nam, Antigua and Barbuda, Iceland, Turkmenistan.
- Canadian Registration for AZZARO (Registration No. 323537), registered February 14, 1984;
- American Registration for AZZARO (Registration No. 1560359), registered October 22, 1987;
- Brazilian Registration for AZZARO (Registration No. 006827900), registered November 3, 1977.
The disputed domain name, <azaro.club>, was registered on August 5, 2015. The disputed domain name has sponsored links to commercial websites offering goods identical to those covered by the Complainant’s trademarks, and more particularly, links to the Complainant’s direct competitor’s goods.
5. Parties’ Contentions
Basically, the Complainant alleges that the disputed domain name is confusingly similar to its registered trademarks. It notes that a dominant part of the disputed domain name contains a name that is identical to the Complainant’s registered mark, having only omitted letter “z” of the well-known AZZARO mark, and apart from “. club” generic extension, which is inherent to the operation of the domain name system, and which directly refers to a club dedicated to the Complainant’s trademark. The Complainant argues that this appears to be an effort to engage in typosquatting, and to take advantage from Internet users seeking to find its <azzaro.com> domain name.
The Complainant affirms that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant indicates that the Respondent is not affiliated in any manner to the Complainant, and has never been authorized to use or register in any way the name “azaro”, including as a domain name.
The Complainant argues that the Respondent is not using the disputed domain name as part of a bona fide offering of goods or services, or for a legitimate noncommercial use. The Complainant also affirms that the Respondent clearly misleads the consumers and diverts them from the Complainant’s official website “www.azzaro. com”, in order to create a commercial gain for himself.
Regarding the issue of bad faith registration and use, the Complainant contends that the Respondent is clearly trying to exploit its widely known wide trademark in order to gain “click through” commissions from the diversion of Internet users, that contains links to websites that could include competitive products and services, which could tarnish its registered marks.
Moreover, the Complainant alleges that the Respondent is intentionally creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of any of the websites resolving from the disputed domain name.
As well, the Complainant affirms that the lack of active use of a domain name does not prevent a finding of bad faith.
The Respondent did not provide a formal Response, however the contents of his emails (sent on September 22, 2015) can be summarized as follows:
The Respondent alleges that he came to know about Azzaro Perfume and the Complainant when the Center formally notified him.
The Respondent argues that he has secured the disputed domain name for his project that is to develop a club related to social, recreational and health purpose.
The Respondent asserts that the offending pages have not been created by him, but believes it is some “algorithm set by Go Daddy which automatically creates some sponsored link on the domain page which are inactive.”
In addition, the Respondent states that what can be seen on those links might be country or user specific, requesting the Panelist “to verify this with some person who is from India and ask him to type this domain and see what comes out”.
The Respondent also asserts, without attaching any evidence, that he has already invested a lot of money in generating awareness about the mentioned project.
Finally, the Respondent alleges that he is not in the business of selling, distributing, or manufacturing perfumes and are not intending to. As well, the Respondent confirms that he would be requesting the Registrar to “revoke Registrar Lock from the Domain.”
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(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 burden of proving these elements is on the Complainant.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is indeed confusingly similar to the Complainant’s marks and the Complainant’s domain name <azzaro.com>. The Panel also finds that the mere exclusion of letter “z” in AZZARO is not enough to distinguish the disputed domain name from the Complainant’s mark and its domain name to escape a finding of confusing similarity. In fact, the website bears the AZZARO trademarks, which are duly registered by the Complainant.
The Panel, therefore, finds that the Complainant has established the first condition of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Complainant has alleged that the Respondent has no rights or legitimate interests with respect to the disputed domain name.
With respect to paragraph 4(c)(i) of the Policy, there is no evidence that the Respondent, before any notice of the dispute, used the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. Even though the Respondent alleges that he has secured the disputed domain name for a project, he has not attached any evidence to prove such allegation.
With respect to paragraph 4(c)(ii) of the Policy, there is no evidence that indicates that the Respondent has ever been commonly known by the disputed domain name.
With respect to paragraph 4(c)(iii) of the Policy, the Respondent has not made or is not making a legitimate noncommercial or fair use of the disputed domain name.
Considering the fact that the Respondent has chosen not to file a response to the Complaint but only a simple email without any grounded information, this Panel finds that there is nothing to suggest that the Respondent has or might have rights or legitimate interests in respect of the disputed domain name.
In view of the above, as the Panel cannot find any indication of any circumstances that indicate the Respondent’s rights or legitimate interests in the disputed domain name.
Therefore, the Panel finds that the Complainant has established the second condition of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The Panel finds that the Respondent has intentionally registered the disputed domain name, which is confusingly similar to the Complainant’s marks and domain name and resolves to a website with links to commercial websites offering goods identical to those covered by the Complainant’s trademarks and links to the Complainant’s direct competitors’ goods. Based on all the above facts, it is highly unlikely that the Respondent was not aware of the Complainant’s trademark rights when the disputed domain name was registered.
Examining the evidence provided by the Complainant, it is confirmed that its trademarks have been in use long before the disputed domain name was registered, including in the Complainant’s own domain name. For such reasons, the Panel finds that the Respondent must have been aware of the Complainant’s trademark when it registered the disputed domain name.
The Panel also finds that the disputed domain name would be a perfect reproduction of the Complainant’s widely known mark AZZARO were it not for the omission of letter “z”. The Respondent’s subterfuge, commonly known as typosquatting, aims to benefit from Internet users’ error when typing the Complainant’s webaddress in the address bar of the browser or selecting a website from a list of search engine results.
Many UDRP panels have held that typosquatting in and of itself establishes bad faith registration and use in the context of the Policy (see National Association of Professional Baseball Leagues, Inc., d/b/a Minor League Baseball v. John Zuccarini, WIPO Case No. D2002-1011 “Typosquatting, however, is the intentional misspelling of words with intent to intercept and siphon off traffic from its intended destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of itself evidence of bad faith”).
There are no facts set out in the available record which could conceivably justify the registration of the disputed domain name by the Respondent. The Respondent’s mere allegations in the email sent on September 22, 2015 were not supported by any evidence that could demonstrate his rights in the disputed domain name.
The Respondent has never used the disputed domain name in connection with a bona fide offering of goods and services. All copies of the past versions of the webpage to which the disputed domain name resolved show that the disputed domain name was used for pay-per-click advertisements. It is well-established that using a domain name to direct users to a site primarily intended to generate pay-per-click advertisement revenue particularly with links related to the Complainant’s trade is not a bona fide offering of goods and services. In fact, such activity is frequently cited by UDRP panels as evidence of bad faith.
Moreover, the Respondent is responsible for the use to which the disputed domain name is put and, in particular, for what appears on the webpage linked to the disputed domain name, even if the sponsored links may not have been generated by the Respondent (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2. 0”), paragraph 3.8).
Therefore, considering all the circumstances of the case, the Panel finds that the Complainant has established the third condition of paragraph 4(a) 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 <azaro.club> be transferred to the Complainant.
Date: October 14, 2015