WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Bazarchic v. Artur Yasinskii, Private Person
Case No. D2019-1403
1. The Parties
The Complainant is Bazarchic of France, represented by Clairmont Novus Avocats, France.
The Respondent is Artur Yasinskii, Private Person of Russian Federation.
2. The Domain Name and Registrar
The disputed domain name <bazarchic.pro> is registered with Tucows Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 18, 2019. On June 19, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 19, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on June 21, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 3, 2019.
The Center verified that the Complaint together with the amended 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 8, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 28, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 1, 2019.
The Center appointed Marilena Comanescu as the sole panelist in this matter on August 9, 2019. 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.
The language of the proceeding is English.
4. Factual Background
The Complainant, the e-commerce French company Bazarchic, is active in the field of luxury items such as womenswear, menswear, jewelry, gastronomy, high tech, and beauty products since 2006. The Complainant claims it has seven million users in Europe, mainly in France, Belgium and Luxembourg.
The Complainant holds several trademark registrations for the BAZARCHIC mark, including the following:
- the International Trademark BAZARCHIC (word), registration number 1332397, registered on September 27, 2016 for goods and services in International Classes 14, 18, 20, 21, 24, 25, 34, 35, and 38; and
- the European Union Trademark BAZARCHIC (word), registration number 15857113, registered on April 6, 2017 for goods and services in International Classes 5, 14, 18, 20, 21, 24, 25, 34, 35 and 38.
The Complainant holds and uses a number of Internet domain name registrations which wholly incorporate the BAZARCHIC mark, such as the following: <bazarchic.com> (the main website), <bazar-chic.com> and <bazzarchic.com>.
The disputed domain name <bazarchic.pro> was registered on August 1, 2018 and, according to the evidence provided in the Complaint, it was used in connection with a website selling make-up and cosmetic products and displaying a logo of BAZARCHIC trademark.
Before commencing the present procedure, on September 10, 2018, the Complainant sent a letter to the Respondent asking for the voluntarily transfer of the disputed domain name to the Complainant. No response was received.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar to its trademark BAZARCHIC, the Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent registered and is using the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In view of the Respondent’s default, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met:
(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 in the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel will further analyze the potential concurrence of the above circumstances.
A. Identical or Confusingly Similar
The Complainant holds rights in the BAZARCHIC trademark.
The disputed domain name <bazarchic.pro> incorporates the Complainant’s trademark BAZARCHIC in its entirety, without any alteration.
Further, it is well established in decisions under the UDRP that the generic Top-Level Domain (“gTLD”) (e.g., “.pro”, “.net”, “.info”, “.com”, “.org”) may typically be disregarded for the purposes of consideration of confusing similarity between a trademark and a domain name.
Given the above, the Panel finds that the disputed domain name <bazarchic.pro> is virtually identical to the Complainant’s trademark BAZARCHIC, pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Complainant asserts that the Respondent does not hold any trademark rights, license or authorization whatsoever to use the mark BAZARCHIC, that the Respondent is not commonly known by the disputed domain name and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services.
Under the Policy, “where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”. See section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
The Respondent has not replied to the Complainant’s contentions and has not come forward with relevant evidence to rebut the Complainant’s prima facie case.
There is nothing in the record suggesting that the Respondent has ever been commonly known by the disputed domain name.
The Respondent has used the disputed domain name in connection with a website selling similar goods to those offered by the Complainant. Having in view all the circumstances of this case, such use is not the equivalent of an activity falling under the circumstances listed by paragraph 4(c) of the UDRP as demonstrating the Respondent’s rights or legitimate interests in the disputed domain name.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Complainant holds trademark rights since 2006. The disputed domain name was registered in 2018 and incorporates the Complainant’s mark entirely. For the above, the Panel finds that the disputed domain name was registered in bad faith, knowing the Complainant and targeting its trademark.
The Respondent has choosen to remain silent to both the Complainant’s letter prior to commencing these proceeding and to the present Complaint and thus, it did not give any explanation for choosing the disputed domain name.
According to the records in the file, the Respondent has used the disputed domain name in relation to a website promoting competing goods to those offered by the Complainant and displaying BAZARCHIC trademark on its home page.
The above circumstances are cumulated with the fact that the Respondent has registered the disputed domain name reproducing Complainant’s mark registered and used for more than ten years and therefore the Panel concludes that the provisions of paragraph 4(b)(iv) of the Policy which provides that the use of a domain name to intentionally attempt “to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location” applies in the present case and is evidence of registration and use in bad faith. Internet users searching for the Complainant would acces the website corresponding to the disputed domain name considering it belongs or is somehow associated with or endorsed by the Complainant. Such confusion would also tarnish the Complainant’s trademark and reputation in its field of activity.
For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
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 <bazarchic.pro> be transferred to the Complainant.
Date: August 19, 2019