WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vente-Privee.com, Vente-Privee.com IP S.à.r.l. v. Domain Admin, WhoIs Foundation, Domain Registries Foundation care of Legal Consulting and Incorporations
Case No. D2015-1945
1. The Parties
The Complainants are Vente-Privee.com of la Plaine Saint-Denis, France and Vente-Privee.com IP S.à.r.l. of Luxembourg, represented by Cabinet Degret, France (collectively the "Complainant").
The Respondent is Domain Admin, WhoIs Foundation, Domain Registries Foundation care of Legal Consulting and Incorporations of Panama City, Panama, represented by Willenken Wilson Loh & Delgado, LLP, United States of America ("United States").
2. The Domain Name and Registrar
The disputed domain name <fr-vente-privee.com> is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint in French was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 29, 2015. On October 29, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 29, 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 and stating that English is the language of the Registration Agreement for the disputed domain name. The Center sent an email communication to the Complainant on October 30, 2015, requesting the Complainant to provide satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceeding should be in French; or submit the Complaint translated into English; or submit a request for French to be the language of the administrative proceeding. The Respondent was also invited to make submissions regarding the language of the administrative proceeding. On November 1, 2015, the Complainant filed a request that French be the language of the administrative proceeding. The Center received pre-commencement communications in English from the Respondent on November 2, 2015, and on November 4, 2015. The Center received a further communication from the Complainant on November 12, 2015, and from the Respondent the same day.
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 November 13, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 3, 2015. The Respondent sent two informal communications to the Center on November 13, 2015. The Response was filed with the Center on November 25, 2015.
The Center appointed Lorenz Ehrler as the sole panelist in this matter on December 3, 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 organizes event-driven online sales of goods and services of any kind which take place on its website "www.vente-privee.com", and provides advice in the field of e-commerce. The above-mentioned website has become one of the main e-commerce websites in France and in the other countries where it is established. The Complainant has provided evidence that its website is commercially successful and well-known.
The Complaint owns several combined trademarks which are registered in several jurisdictions and which contain in particular the verbal elements "vente-privée" and/or "vente-privée.com". These trademarks were filed between 2004 and 2013. All or most of them were registered before the registration date of the disputed domain name, which is December 29, 2014.
5. Parties' Contentions
The Complainant filed its Complaint in French and requested, upon its attention being drawn to the applicable Rules to determine the applicable language, the French language to be applied on the present dispute.
In the context of the Respondent offering to suspend the proceedings in view of negotiating an amicable settlement, the Complainant refused arguing that it did not want the Respondent to get away with a negotiated solution. It submitted that the dispute should in any case be decided on the merits.
The Complainant contends that the disputed domain name is confusingly similar to its VENTE-PRIVEE trademarks. It stresses the fact that the disputed domain name entirely comprises the aforementioned trademark VENTE-PRIVEE.
Furthermore, the Complainant states that the Respondent is not affiliated or related to it in any way, and that it did not authorize the Respondent to use the trademark in question. The Complainant also states that the Respondent does not have any prior rights or legitimate interests in the disputed domain name and that it does not make any legitimate use of the disputed domain name.
Lastly, the Complainant contends that the Respondent registered and uses the disputed domain name in bad faith.
The Respondent did not respond on the merits. In contrast, in its prayer for relief, it also requests that the disputed domain name be transferred to the Complainant. More specifically, it requests that such transfer be ordered without further findings of fact or liability, i.e., without the dispute to be examined on its merits.
6. Discussion and Findings
The Policy was adopted for the purpose of resolving disputes concerning allegations of abusive domain name registration and use, the remedies – in case abusive domain registration is confirmed – being limited to the cancellation or the transfer of the disputed domain name (Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store, WIPO Case No. D2002-0774).
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(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 with respect to the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith.
The Panel notes that the Complainant has requested a decision on the merits, whereas the Respondent has requested a voluntary transfer of the disputed domain name to the Complainant. The Panel has considered paragraph 4.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") and it is clear that the Panel has discretion to order transfer of the disputed domain name on the basis of the Respondent's unilateral and unambiguous consent on the record to the remedy sought by the Complainant, or to consider the merits, where appropriate.
Accordingly, and in view of procedural efficiency, this Panel considers that a unilateral consent to transfer by the Respondent provides a basis for an order for transfer without consideration of the Policy paragraph 4(a) conditions. As was noted in particular in The Cartoon Network LP, LLLP v. Mike Morgan, WIPO Case No. D2005-1132, when the complainant seeks the transfer of the disputed domain name, and the respondent consents to transfer, the panel may proceed immediately to make an order for transfer pursuant to paragraph 10 of the Rules. Accordingly, and in light of the Respondent's consent to the remedy sought by the Complainant set forth above, the Panel will order the transfer of the disputed domain name to the Complainant. This is clearly the most expeditious course (see Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207) and a number of prior UDRP decisions have followed this approach.
As regards the language issue, this Panel, in light of the acknowledgment of the Complaint by the Respondent and procedural efficiency, has decided to accept each party's filing(s) in the languages actually used. In deciding so, it has taken into account that, on the one hand, English is clearly understood by the Complainant and, on the other hand, the Respondent seems to have understood the Complaint, too, as it responded to it without commenting on the language of the Complaint.
As regards the present decision, this Panel has decided to follow the general rule of paragraph 11(a) of the Rules, which provides that, in the absence of an agreement between the Parties, or specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. The language of the registration agreement regarding the disputed domain name is English.
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 <fr-vente-privee.com> be transferred to the Complainant Vente-Privee.com.
Date: December 14, 2015