WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lancôme Parfums Beauté et compagnie v. him jomver
Case No. D2015-2184
1. The Parties
Complainant is Lancôme Parfums Beauté et compagnie of Paris, France, represented by Dreyfus & associés, France.
Respondent is him jomver of Guangzhou, Guangdong, China.
2. The Domain Name and Registrar
The disputed domain name <lancomecn.com> 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 December 1, 2015. On December 2, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 and 4, the Center formally notified Respondent of the Complaint, and the proceeding commenced on December 4, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 24, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on December 28, 2015.
The Center appointed Peter Wild as the sole panelist in this matter on January 5, 2016. 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
Complainant is one of the biggest producers and sellers in the women selective cosmetic market and is well know all over the world. Complainant has ambassadresses who are world famous actresses such as Julia Roberts, Kate Winslet, Penelope Cruz and Emma Watson.
It is largely present worldwide and in China where this brand is intensively promoted.
The disputed domain name resolves to a website under "www.lancame.com" which entirely reproduces Complainant's trademark and logo LANCÔME Paris, offers products branded Lancôme for sale, has the appearance of an official website was registered in July 2015.
Complainant and its trademark LANCÔME enjoy a worldwide reputation. Complainant owns numerous trademark registrations around the world, for example:
- International trademark LANCÔME No.164395, registered on October 6, 1952, renewed and covering goods in classes 3 and 21;
- Chinese Trademark Registration LANCÔME No. 76096 of October 7, 1977, renewed and covering goods in class 3;
- Chinese Trademark Registration LANCÔME No. 775926 of January 14, 1995, renewed and covering services in class 42.
In addition, Complainant and affiliates operate, among other, the following domain names reflecting its trademark in order to promote its services:
- <lancome.com> created on July 8, 1997;
- <lancome.com.cn> created on December 9, 1999.
5. Parties' Contentions
According to Complainant, the disputed domain name <lancomecn.com> is identical or at least confusingly similar to its trademark LANCÔME, the element "cn" being only a geographic descriptor and having no influence on the overall appearance of the disputed domain name. Complainant furthermore alleges that Respondent has no rights nor legitimate interests in the disputed domain name and that registration and use of the disputed domain name are in bad faith, as the website displays Complainant's trademarks and products and creates the impression of an authorized resale website, while in fact there is not authorization by Complainant. Complainant also alleged that it is likely that the website is used to sell counterfeit products.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Complainant asserts that it is a well-established and well-known manufacturer of high class women cosmetics in France with worldwide presence. It has used the LANCÔME mark ("Complainant's Trademark") in connection with cosmetics for many years.
Complainant further shows that it is the owner of numerous trademark registrations for the mark LANCÔME including in France, as International Registrations and in China, the earliest one shown going back to 1952. Respondent disputes none of this.
Complainant has registered rights in the LANCÔME trademark in connection with cosmetics and other beauty products. In light of Complainant's assertions and lack of any response by Respondent, the Panel accepts that Complainant's Trademark is identified with Complainant. Complainant argues that the disputed domain name incorporates, as a dominant part, its well-known, registered trademark LANCÔME, with the addition of the generic descriptor "cn", which defines the territory of China. The Panel finds that Internet users are likely to regard the element "cn" as descriptive of a website where they could find Complainant's products for or in the Chinese market and the main distinctive element to be "lancome". The element "cn" in this context has no influence on the overall impression created by the disputed domain name.
For these reasons the Panel finds:
a) Complainant has rights in the trademark LANCÔME.
b) The disputed domain name is confusingly similar to Complainant's Trademark in so far as it contains the distinctive element "lancome" accompanied by the descriptive and generic term "cn".
Accordingly, the Panel is satisfied that the first element of the Policy is met.
B. Rights or Legitimate Interests
Complainant asserts that Respondent is using the disputed domain name for a website which displays Complainant's trademarks, products and advertising photographs. This Panel compared the website under Complainant's "www.lancome.fr" with the website to which the Internet user is directed under the website at the disputed domain name and comes to the conclusion that Respondent is using identical, probably copyrighted material. According to Complainant, this is done without Complainant's consent. Whether Respondent has rights or legitimate interests in the disputed domain name must be assessed against Complainant's rights taking into account the manner in which Respondent uses the disputed domain name.
The website to which the redirected disputed domain name resolves creates the impression that Respondent is an official reseller for Complainant's products. It displays Complainant's Trademark, the specific font and style of the trademark LANCÔME and direct copies of Complainant's advertising material. Complainant claims that Respondent is no official reseller and, without further evidence, suggests that Respondent may be selling counterfeit goods. There is no evidence for such allegation in front of this Panel.
The burden of proof is on Complainant to demonstrate a prima facie case that Respondent does not have rights or legitimate interests in the disputed domain name. After that, the burden of production shifts to Respondent to demonstrate rights or legitimate interests in the disputed domain name.
In light of the evidence, it is clear to the Panel that Complainant has earlier and lawful rights in the LANCÔME trademark. Complainant has not granted Respondent any right or license to use the LANCÔME trademark and Respondent is not an authorized reseller for LANCÔME products.
As stated above, Complainant alleges that the products offered for sale on the website at the disputed domain name may be counterfeits. There is however no evidence supporting this allegation. This Panel therefore accepts that the goods may well be either legitimate or counterfeit.
In the absence of a response by Respondent, the Panel accepts Complainant's allegations as true that Respondent has no authorization to use the LANCÔME trademark in the disputed domain name.
The Panel is of the opinion that, a reseller of that trademark holder's real products who creates the false impression of being an authorized reseller without express consent of the relevant trademark holder, such use is not bona fide use and does not create any right or legitimate interest to register and use a domain name that fully incorporates the relevant trademark. In addition, there are two elements which speak against Respondent's rights or legitimate interests: First, the disputed domain name is redirected to "www.lancame.com", which is nothing but a typographical error domain of Complainant's known trademark LANCÔME. Second, Respondent uses Complainant's Trademark and advertising material in a way which implies that there is an official connection with or authorization by Complainant. Both is not the case.
The Panel also accepts that Respondent is not commonly known by the disputed domain name, Respondent has acquired no trademark or service mark rights, and Respondent is not an authorized dealer or representative of Complainant.
Moreover, as Complainant points out, Respondent would not meet the criteria laid down in Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 as the website does not prominently or accurately disclose Respondent's relationship with Complainant.
On this basis the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name (see Aktiebolaget Electrolux v. Domain Admin, whoisprotection.biz / Emrecan ARSLAN, WIPO Case D2015-0298).
The Panel is satisfied that the second element of the Policy has been met.
C. Registered and Used in Bad Faith
According to the record, Respondent is using the disputed domain name for a website displaying Complainant's products and advertising material without Complainant's authorization. The website displays Complainant's products and Trademark. This Panel therefore accepts that Respondent knew Complainant's widely-known trademark at the time of registering the disputed domain name. Respondent also chose a domain name which not only incorporates Complainant's Trademark which is well known in the cosmetic field but added the descriptor "cn". A simple Internet search would have shown to Respondent that LANCÔME was a well-established trademark in the cosmetic field with trademark protection in China and more territories.
Also, Respondent displays false information on the website. The disputed domain name was registered on July 21, 2015 while the copyright notice specifies 2010 – 2020 which wrongly suggest this website has been online for five years and the author enjoys copyright over content which is clearly owned by Complainant.
In addition, the Panel notes there is no disclaimer on the website disclaiming any relationship between Respondent and Complainant.
The Internet user is redirected from the disputed domain name to a website which is displayed under the domain name <lancame.com>. This is evidence for the Panel that Respondent's intent is to attract the Internet user to its website for commercial gain.
Respondent did not reply or submit any explanation or possible justification for its choice of the disputed domain name. In light of all these elements, it is reasonable to infer that Respondent wishes to take advantage of Internet users who may know of or wish to buy Complainant's well-known goods. In the absence of any explanation from Respondent as to how and why it chose the disputed domain name and why confusion and deception is unlikely to occur, the Panel finds that Respondent registered and used the disputed domain name in bad faith to take advantage of Internet users who know and trust Complainant's Trademark.
By using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's website, 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. Complainant's Trademark is a widely-known trademark worldwide and also in China, where the Respondent is based.
Even if the products offered for sale on the website are genuine LANCÔME products of Complainant, the Panel has concluded that Respondent has registered and used the disputed domain name in order to pass off the website as a website of or licensed by Complainant, for commercial gain.
In light of these factors, the third element of the policy has been met.
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 <lancomecn.com> be transferred to Complainant.
Date: January 11, 2015