WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
VISIOMED GROUP v. Caba Oth
Case No. D2017-0133
1. The Parties
Complainant is VISIOMED GROUP of Paris, France, represented by Coblence & Associés, France.
Respondent is Caba Oth of Beijing, China.
2. The Domain Name and Registrar
The disputed domain name <bewell-xpert.com> is registered with Turncommerce, Inc., doing business as NameBright.com ("Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("Center") on January 24, 2017. On January 24, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 24, 2017, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing contact details and other information relating to the registration.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy ("Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy ("Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on January 31, 2017. In accordance with the Rules, paragraph 5, the due date for Response was February 20, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on February 21, 2017.
The Center appointed Debra J. Stanek as the sole panelist in this matter on February 24, 2017. 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 owns a number of trademark registrations for the mark BEWELL alone and in combination with other terms, including French Trademark registration No. 4222294 BEWELLXPERT, filed on November 2, 2015.
On May 16, 2016, Respondent registered the disputed domain name <bewell-xpert.com>; it currently resolves to a parking page with the message: "bewell-xpert.com is coming soon".. In response to Complainant's cease and desist letter, Respondent offered to sell the domain name for EUR 3,800, later reducing the price to EUR 1,500.
5. Parties' Contentions
1. Identical or Confusingly Similar
Complainant offers various "connected" medical products under the name BEWELL CONNECT, such as thermometers and blood pressure monitors, which are intended to help users manage their health. It owns various French, European Union, and other registrations for various BEWELL marks, including French registrations for the marks BEWELL and BEWELLXPERT.
The disputed domain name is confusingly similar because it exactly reproduces Complainant's BEWELLXPERT mark with the addition of a hyphen between "bewell" and "xpert."
2. Rights or Legitimate Interests
To Complainant's knowledge, Respondent has not registered and has no rights in any "bewell" mark, including "bewellxpert".
Complainant has not authorized Respondent's use of its marks.
Respondent clearly intends to profit from its use of the disputed domain name because it is confusing similar to Complainant's famous trademarks.
Respondent has not made a legitimate noncommercial or fair use of the disputed domain name; Respondent is trying to create confusion in the mind of the public.
3. Registered and Used in Bad Faith
The registration contact information appears to be false; the street, city, and state/province are all identified as "Beijing".
Respondent must have known of Complainant's famous BEWELL marks when it registered the disputed domain name on May 16, 2016.
Respondent is not using the disputed domain name; instead it is passively holding the name.
When Complainant objected to Respondent's registration, it proposed to sell the disputed domain name for EUR 3,800, which is in excess of its out-of-pocket costs.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
To prevail, a complainant must prove, as to a disputed domain name, that:
(i) It is identical or confusingly similar to a mark in which complainant has rights.
(ii) Respondent has no rights or legitimate interests in respect to it.
(iii) It has been registered and is being used in bad faith.
Policy, paragraph 4(a). The Policy provides examples of circumstances that may evidence rights or legitimate interests in a domain name, see Policy, paragraph 4(c), as well as those that may evidence bad faith registration and use, see Policy, paragraph 4(b).
A. Identical or Confusingly Similar
Complainant has established its rights in the marks BEWELL and BEWELLXPERT by virtue of the evidence of its French trademark registrations (in addition to registrations in other jurisdictions for BEWELL and other "bewell"-formative marks).
Respondent's domain name differs from Complainant's BEWELLXPERT mark only as to the inclusion of a hyphen between "bewell" and "xpert"1. The Panel finds that the use of the hyphen is a trivial difference that does not serve to differentiate the disputed domain name from Complainant's mark in appearance, pronunciation, or meaning.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
B. Rights or Legitimate Interests
The Panel agrees with the consensus view that a complainant may establish that a respondent has no rights or legitimate interests in respect of a domain name by making a prima facie showing. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"), Paragraph 2.1(once complainant makes a prima facie case, the burden of showing rights or legitimate interests in the domain name shifts to respondent). Paragraph 4(c) of the Policy sets out examples of how rights and legitimate interests may be established:
"(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 Panel finds that Complainant has made a prima facie showing under the Policy, which Respondent has not rebutted. There is no evidence of any use (or preparations to use) the disputed domain name in connection with a bona fide offering. Nothing in the record suggests that Respondent is known by the disputed domain name; Respondent appears to be an individual. There is no indication that use of the disputed domain name is noncommercial or otherwise a fair use.
The Panel concludes that Complainant has established that Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Complainant must establish that the disputed domain name was registered and is being used in bad faith. The Panel finds that Complainant has established bad faith under paragraph 4(b)(i) of the Policy.
Complainant's rights in its BEWELL and BEWELLXPERT marks predate the registration of the disputed domain name. The Panel finds that it is most probable that Respondent was actually aware of Complainant's marks at the time the disputed domain name was registered and registered it with Complainant's marks in mind. In response to Complainant's objection to the registration, Respondent offered to sell it for EUR 3,800. Further, the Panel draws adverse inferences from Respondent's apparent provision of false contact information and failure to respond to the Complaint.
Under these circumstances, the Panel finds that Complainant has established that Respondent has registered and is using the disputed domain name in bad faith.
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, <bewell-xpert.com>, be transferred to Complainant.
Debra J. Stanek
Date: March 6, 2017
1 The addition of the generic Top-Level Domain, ".com", is not relevant for purposes of this comparison.