WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Etude Corporation v. Amirreza Saberan
Case No. DIR2018-0015
1. The Parties
The Complainant is Etude Corporation of Seoul, Republic of Korea, represented Clyde & Co., United Arab Emirates.
The Respondent is Amirreza Saberan of Khorasan, Islamic Republic of Iran.
2. The Domain Name and Registrar
The disputed domain name <etudehouse.ir> is registered with IRNIC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 17, 2018. On July 17, 2018, the Center transmitted by email to IRNIC a request for registrar verification in connection with the disputed domain name. On July 18, 2018, IRNIC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. Hard copies of the Complaint were received by the Center on July 19, 2018.
The Center verified that the Complaint satisfied the formal requirements of the .ir Domain Name Dispute Resolution Policy (the "Policy" or "irDRP"), the Rules for .ir Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for .ir Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceeding commenced on July 24, 2018. In accordance with the Rules, paragraph 5(a), the due date for Response was August 13, 2018. On August 14, 2018, the Center notified the Respondent's default.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on August 17, 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.
On August 23, 2018, the Panel issued an Administrative Panel Procedural Order No. 1 (the "Panel Order") requesting the Complainant to provide evidence of the website to which the disputed domain name previously resolved by August 27, 2018. The Panel Order also allowed for the Respondent to file submissions in reply by August 31, 2018.
On August 27, 2018, the Complainant filed submissions and evidence in response to the Panel Order. The Respondent did not file any submissions in reply.
4. Factual Background
The Complainant is a company incorporated in the Republic of Korea. The Complainant has manufactured and sold cosmetics under the trade mark ETUDE HOUSE (the "Trade Mark") in numerous countries worldwide, since 1985 (including in the Islamic Republic of Iran).
The Complainant is the owner of numerous registrations in jurisdictions worldwide for the Trade Mark, including Iranian registration No. 164343, registered on February 14, 2009.
The Respondent is apparently an individual resident in the Islamic Republic of Iran.
C. The Disputed Domain Name
The disputed domain name was registered on March 28, 2014.
D. The Website at the Disputed Domain Name
Prior to the filing of the Complaint, the disputed domain name was resolved to the English and Persian language website "www.persiancosmetics.ir" (the "Website").
After the filing of the Complaint and prior to the appointment of the Panel, the Respondent ceased resolving the disputed domain name to any active website.
5. Parties' Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered or is being used in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
The Panel respectfully agrees with the views of learned panelists in previous decisions issued under the irDRP that, given the similarities between the irDRP and the UDRP (upon which the irDRP is based), it is appropriate to refer to UDRP jurisprudence, and the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), in applying the irDRP.1
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview 3.0, section 1.7). Excluding the ccTLD ".ir", the disputed domain name is identical to the Trade Mark.
The Panel therefore finds that the disputed domain name is identical to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent's use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he or she has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name was previously resolved to the Website, a website relating to the same goods (cosmetics) in respect of which the Trade Mark has been registered and used by the Complainant for many years (including in the Islamic Republic of Iran).
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant's prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered or Used in Bad Faith
The evidence on record indicates that the Respondent sought to take advantage of the Trade Mark when registering the disputed domain name.
In light of the evidence of the Respondent's prior use of the Website in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraph 4(b)(iv) of the Policy.
The fact that, at some stage following filing of the Complaint, the Respondent ceased resolving the disputed domain name to the Website, provides further evidence in support of a finding of bad faith.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been both registered and used 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 <etudehouse.ir> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: September 5, 2018