WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lynx Optique v. Net Manager, Xwings Domains
Case No. D2015-1696
1. The Parties
The Complainant is Lynx Optique of Nanterre, France, represented by Ernest Gutmann - Yves Plasseraud SAS, France.
The Respondent is Net Manager, Xwings Domains of Sydney, Australia.
2. The Domain Name and Registrar
The disputed domain name <lynx-optique.net> is registered with Rebel.com Corp. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 24, 2015. On September 24, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 1, 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 October 7, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 27, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 29, 2015.
The Center appointed Daniel Peña as the sole panelist in this matter on November 10, 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 has been active in the field of optician's stores, offering a full range of spectacles, contact lenses, optical products and other eyewear-related products and services.
The Complainant has used the name "Lynx Optique" in France to designate optician's stores since 1968.
The Complainant has obtained numerous trademark registrations for LYNX OPTIQUE in France as well as in several other countries. The list of registered trademarks owned by the Complainant includes French trademark Reg. No. 1621044 for the trademark LYNX OPTIQUE (Word) filed on October 11, 1990 (registration date March 22, 1991).
The Complainant is also the owner of numerous trademark registrations for LYNX OPTIQUE (word & device).
The Complainant has registered all the above listed trademarks in International class 9 to designate optical goods, glasses and other eyewear-related products as well as in International class 44 in connection with optician's services.
The Complainant also operates an on-line store on the websites "www.lynx-optique.com" and "www.lynx-optique.fr" selling a full range of spectacles, contact lenses, optical products and other eyewear-related products.
The Complainant had an annual turnover of around EUR 60 million for the year 2014.
The disputed domain name was registered on February 13, 2006 and at the time the Complaint was filed resolved to a page displaying glasses-related pay-per-click links in French.
5. Parties' Contentions
The trademark LYNX OPTIQUE is used by the Complainant in every part of France and the Complainant is known as one of the major players in the field of optics in France.
The Complainant is very active in promoting its mark through numerous nationwide advertising campaigns on regional and national media.
The disputed domain name resolves to a web page displaying several links such as "Lunette optique [optical glasses]", "lunettes de vue [eyeglasses]", "Lunettes pas cher [Cheap glasses]", "Lunettes Ray Ban Femme [Ray-Ban women sunglasses]" and "Lunettes Soleil [sunglasses]". These links resolve to the pages of chains of stores which are direct French competitors to the Complainant.
The disputed domain name <lynx-optique.net> is identical to the trademark LYNX OPTIQUE and it is confusingly similar with the trademark LYNX OPTIQUE (word & device).
The addition of a hyphen in the disputed domain name <lynx-optique.net> between the words "lynx" and "optique" does not make the disputed domain name sufficiently dissimilar from the trademark LYNX OPTIQUE.
The suffix ".net" is a generic Top-Level Domain (gTLD), which is not sufficient to render a domain name dissimilar and prevent consumer confusion.
The Respondent has neither rights nor legitimate interests in respect of the disputed domain name <lynx-optique.net>.
The Respondent is not a licensee of the Complainant, nor is it otherwise authorized to use any of the Complainant's trademarks.
The Respondent is not in a position to provide any evidence of a bona fide offering of goods or services through the disputed domain name.
The disputed domain name is pointing to a pay-per-click page, offering links which redirect to websites providing similar services and goods as those provided by the Complainant. On the top of this page, the domain name is announced as "may be for sale".
The Respondent owns 1,507 domain names. Among those registrations, several include well-known marks or typo-squatted well-known marks.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated 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;
(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.
A. Identical or Confusingly Similar
The Complainant has clearly shown that it has rights in the LYNX OPTIQUE trademarks.
The disputed domain name incorporates the whole of the trademark LYNX OPTIQUE to which there is added the gTLD ".net" and a hyphen. The Panel considers that the addition of the gTLD suffix and a hyphen does not diminish in any way the confusing similarity between the Complainant's LYNX OPTIQUE trademarks and the disputed domain name.
The Panel finds that the Complainant has rights in the LYNX OPTIQUE trademarks and the disputed domain name <lynx-optique.net> is confusingly similar to these trademarks.
Therefore, the Panel considers that the requirement of paragraph 4(a)(i) of the Policy is met.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy lists several manners in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name:
"Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you 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 (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 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."
The consensus of previous decisions under the Policy is that a complainant may establish this element by making out an unrebutted prima facie case that the respondent has no rights or legitimate interests in the disputed domain name. In this case, the Panel is satisfied that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name based upon its submissions that (1) the Respondent has no prior rights or legitimate interests in the disputed domain name. The registration of the LYNX OPTIQUE trademark preceded the registration of the disputed domain name by years; (2) it has not licensed or otherwise authorized the Respondent to use its LYNX OPTIQUE trademarks or to incorporate them into a domain name; (3) that, given the extensive use of the Complainant's marks and the fact that they are uniquely linked to the Complainant, the Respondent must have been aware of this when it registered the disputed domain name; and (4) that the current use of the disputed domain name does not relate to a bona fide offering of goods or services or any legitimate noncommercial or fair purpose.
The Respondent did not submit a Response or attempt to demonstrate any rights or legitimate interests in the disputed domain name, and the Panel draws adverse inferences from this failure in accordance with the Rules, paragraph 14(b).
The Panel finds the Respondent has no rights or legitimate interests in respect of the disputed domain name and that paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration or use of a disputed domain name in bad faith:
(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name;
(ii) the 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 the respondent has engaged in a pattern of such conduct;
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 the respondent's web site or location or of a product or service on its website or location.
The Complainant has demonstrated that its trademarks are registered and widely used and that the disputed domain name incorporates in full its trademarks and that the Respondent has no relationship to the Complainant or its LYNX OPTIQUE trademarks, but uses the website at the disputed domain name to host pay-per-click links to the Complainant's competitors.
It is clear to the Panel that the Respondent is using the disputed domain name to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant's LYNX OPTIQUE trademarks as to the source, sponsorship, affiliation or endorsement of its website.
The Panel finds that the Respondent has registered and is using the disputed domain name in bad faith under paragraphs 4(a)(iii) and 4(b)(iv) 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 <lynx-optique.net> be transferred to the Complainant.
Date: November 23, 2015