WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ales Group v. Ali Dastan
Case No. D2018-1647
1. The Parties
The Complainant is Ales Group of Paris, France, represented by SafeBrands, France.
The Respondent is Ali Dastan of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <phytolastil.com> is registered with Name.com, Inc. (Name.com LLC) (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 20, 2018. On July 20, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 24, 2018, 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 July 26, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 15, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 16, 2018.
The Center appointed Kaya Köklü as the sole panelist in this matter on August 21, 2018. 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 was founded in 1975 and is part of the ALES Group. The ALES Group has locations around the world, including in Turkey. It designs, formulates, manufactures and markets cosmetics, hair care and coloring products and perfumes.
The Complainant is the owner of various PHYTOLASTIL trademarks, registered in a large number of jurisdictions since the early 1970's, including in Turkey. According to the documents submitted by the Complainant (cf. Annexes 7 and 8 to the Complaint), the Complainant is inter alia the registered owner of the Turkish Trademark Registrations No. 2009/34591 (registered on May 14, 2010) and No. 2013/33994 (registered on May 14, 2014), both covering trademark protection for various kinds of cosmetic and beauty products as part of class 3 or related services as part of class 35.
The Respondent is an individual from Istanbul, Turkey.
The disputed domain name was registered on November 22, 2017.
The disputed domain name resolves to an active website in Turkish providing various discounted Beauty-related articles of the Complainant. The Complainant's screenshots of the disputed domain name (cf. Annex 11 to the Complaint) show that the Respondent prominently uses the PHYTOLASTIL and other registered trademarks and logos of the Complainant without publishing any visible disclaimer describing the (non-existent) relationship between the Parties.
According to the available record, the Respondent did not reply to the cease-and-desist letter sent by the Complainant's representatives on April 6, 2018.
5. Parties' Contentions
The Complainant requests the transfer of the disputed domain name.
The Complainant is of the opinion that the disputed domain name is identical to its PHYTOLASTIL trademark.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It is rather argued that the disputed domain name falsely suggests that there is an official or authorized link between the Complainant and the Respondent.
Finally, it is argued that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant particularly argues that the Respondent must have been well aware of the Complainant's PHYTOLASTIL trademark, when registering the disputed domain name.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark 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.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complaint's contentions. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See, section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0").
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is identical to the PHYTOLASTIL trademark of the Complainant.
First, the Panel confirms that the Complainant has satisfied the threshold requirement of having trademark rights. As evidenced in the Complaint, the Complainant is the owner of various PHYTOLASTIL trademark registrations around the world, including in Turkey.
The disputed domain name is identical to the Complainant's PHYTOLASTIL trademark as it incorporates the Complainant's trademark in its entirety without any additions or amendments.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Panel further finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
While the burden of proof on this element remains with the complainant, previous UDRP panels have recognized that this would result in the often impossible task of proving a negative, in particular as the evidence in this regard is often primarily within the knowledge of the respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production of evidence shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain name in order to meet the requirements of paragraph 4(a)(ii) of the Policy. See, Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
The Panel finds that the Complainant has satisfied this requirement, while the Respondent has failed to file any evidence or make any convincing argument to demonstrate rights or legitimate interests in the disputed domain name according to the Policy, paragraphs 4(a)(ii) and 4(c).
In its Complaint, the Complainant has provided uncontested prima facie evidence that the Respondent has no rights or legitimate interests to use the Complainant's trademark PHYTOLASTIL within the disputed domain name.
There is also no indication in the current record that the Respondent is commonly known by the disputed domain name. In the absence of a response, the Respondent has also failed to demonstrate any of the other non-exclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or other evidence of rights or legitimate interests in the disputed domain name.
The Panel particularly notes that the website which is linked to the disputed domain name does not adequately disclose the relationship, or lack thereof, between the Respondent and the Complainant, thus creating the false impression that the Respondent might be an official and authorized agent for the Complainant's beauty products and services in Turkey. In view of the Panel, this takes the Respondent out of any conceivable safe harbour for purposes of the second element.
As a conclusion, the Panel finds that the Complainant has also satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel is further convinced that the Respondent has registered and is using the disputed domain name in bad faith.
The Panel is convinced that the Respondent must have had the Complainant's trademark in mind when registering the disputed domain name. It even appears that the Respondent has registered the disputed domain name solely for the purpose of creating an association with the Complainant. After having reviewed the Complainant's screenshot of the website linked to the disputed domain name (cf. Annex 11), the Panel is convinced that the Respondent has intentionally registered the disputed domain name in order to generate traffic to its own website. The Panel notes that the Respondent has not published any visible disclaimer on the website linked to the disputed domain name to explain that there is no existing relationship between the Respondent and the Complainant. Quite the opposite, the design of the website linked to the disputed domain name and the prominent use of the Complainant's trademarks in various forms is sufficient evidence in view of the Panel that the Respondent intentionally tries to attract, for illegitimate gain, Internet users to its website by creating a likelihood of confusion with the Complainant's PHYTOLASTIL trademark as to the source, sponsorship, affiliation or endorsement of its website.
Furthermore, the Panel finds that the Respondent's failure to respond to the Complaint's letter of April 6, 2018 also supports the conclusion that it has registered and is using the disputed domain name in bad faith. The Panel believes that, if the Respondent did in fact have legitimate purposes in registering and using the disputed domain name, it would have probably responded.
The Panel therefore concludes that the disputed domain name was registered and is used in bad faith and that the Complainant has also satisfied the third element of the Policy, namely, paragraph 4(a)(iii) 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, <phytolastil.com> be transferred to the Complainant.
Date: August 30, 2018