Complainant is BAZARCHIC, France, represented by Clairmont Novus Avocats, France.
Respondent is Milen Radumilo, Romania.
The disputed domain name <bazardchic.com> is registered with Compuglobalhypermega.com LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 13, 2019. On November 13, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 14, 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 Complainant on the same day, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on November 15, 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 Respondent of the Complaint, and the proceedings commenced on November 26, 2019. In accordance with the Rules, paragraph 5, the due date for Response was December 16, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 17, 2019.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on December 26, 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.
Complainant, Bazarchic, is a French e-commerce company that arranges for the private sales of luxury items at discounts to its subscribers. Complainant operates a website at <bazarchic.com> to conduct its e-commerce business. Complainant registered the domain name <bazarchic.com> on November 16, 2005, and started operating in 2006.
Complainant is the owner of several trademark registrations for the BAZARCHIC mark, including, inter alia, a European Union registration that issued to registration on September 26, 2016 (Registration No. 15857113) and a French registration that issued to registration on February 8, 2006 (Registration No. 3408882).
Respondent, who is based in Romania, registered the disputed domain name on December 21, 2016. Respondent has used the disputed domain name as a redirect to pages within Complainant’s website and, alternatively, to a web page full of links concerning fashion and designer clothing, jewelry and related items. The disputed domain name is currently used for dynamic redirection.
Complainant sent Respondent multiple demand letters in October 2019, through the Registrar of the disputed domain name. Respondent does not appear to have responded to any of these letters.
Complainant asserts that it has rights in the name and mark BAZARCHIC on account of Complainant’s trademark registrations for the BAZARCHIC mark, which predate Respondent’s registration of the disputed domain name, and by virtue of Complainant’s use of the BAZARCHIC name and mark on Complainant’s website at <bazarchic.com> since 2006.
Complainant argues that that the disputed domain name is confusingly similar as the disputed domain name fully consist of Complainant’s BAZARCHIC mark with the addition of the extra letter “d” to create a typo version of the BAZARCHIC mark and <bazarchic.com> domain name. Complainant further argues that the confusion is heightened as Respondent has been using the disputed domain name to redirect web users to Complainant’s official website.
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name, as Respondent (i) is not commonly known by the disputed domain name, (ii) has never been authorized by Complainant to use the BAZARCHIC name and mark, and (iii) has used the disputed domain name to redirect web users to Complainant’s website or to other web pages.
Lastly, Complainant asserts that Respondent has registered and used the disputed domain name in bad faith given that Respondent registered the disputed domain name that is based on a typo version of the BAZARCHIC mark some eleven years after Complainant began using the BAZARCHIC mark for its e‑commerce website. Complainant also contends that Respondent’s bad faith is further established by Respondent’s (i) failure to respond to Complainant’s demand letters, (ii) use of a privacy shield to register the disputed domain name, and (iii) use of the disputed domain name to redirect web users to Complainant’s website.
Respondent did not reply to Complainant’s contentions.
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond to the Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006‑0340.
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0 at section 1.2.1. Complainant has provided evidence that it owns and obtained trademark registrations for the BAZARCHIC mark in multiple jurisdictions prior to the date that Respondent acquired the disputed domain name.
With Complainant’s rights in BAZARCHIC mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain (“gTLD”) such as “.com”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842. The threshold for satisfying this first element is relatively low and generally previous UDRP panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant’s BAZARCHIC mark as the disputed domain name is merely a typo version or misspelling of the BAZARCHIC mark that includes the letter “d” between the words “bazar” and “chic” in the disputed domain name. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s BAZARCHIC mark and in showing that the disputed domain name is identical or confusingly similar to that trademark.
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
Based on the evidence submitted in this proceeding, and Respondent’s failure to file a response, the Panel concludes that Respondent lacks rights or legitimate interests in the disputed domain name. Since acquiring the disputed domain name, which was on a date well after Complainant had secured rights in the BAZARCHIC mark, Respondent has used the disputed domain name in order to redirect web users to Complainant’s website and/or to a web page full of fashion related links. Such use of the disputed domain name, which is based on nothing more than a misspelling of the BAZARCHIC mark, and likely for Respondent’s profit in some form, does not constitute a legitimate use and is opportunistic. This is particularly so as the disputed domain is visually similar to the BAZARCHIC mark in overall appearance and is likely to be mistakenly seen by consumers as related to Complainant and its e-commerce service at <bazarchic.com>.
Given that Complainant has established with sufficient evidence that it owns rights in the BAZARCHIC mark, and given Respondent’s above noted actions and failure to file a response, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case.
In view of Respondent’s actions, and failure to appear in this proceeding, it is easy to infer that Respondent’s registration and use of the disputed domain name, which is merely a typo version of Complainant’s BAZARCHIC mark, has been done opportunistically and in bad faith for purposes of redirecting web users to a website with links to third party offerings or pages within Complainant’s website. As Complainant does not control the disputed domain name, the fact that Respondent has redirected the disputed domain name to Complainant’s website makes clear that Respondent is well aware of Complainant and the BAZARCHIC mark and that Respondent could easily use the disputed domain name at any time to benefit Respondent in some way from its association with Complainant if it is not already doing so. Respondent registered the disputed domain name well after Complainant has established rights in the BAZARCHIC mark in connection with its luxury product sales website, and after Complainant had obtained trademark registrations for the BAZARCHIC mark in connection with it services. Given that Respondent expressly registered a typo version of the BAZARCHIC mark for purposes of capturing web traffic that might otherwise be looking for Complainant, it is clear that Respondent’s actions were in bad faith and knowingly meant to take advantage of the goodwill associated with Complainant’s BAZARCHIC mark.
Additionally, the fact that Respondent continues using the disputed domain name to redirect web traffic for Respondent’s benefit, despite having been sent multiple demand letters and after being put on notice of this proceeding, further underscores Respondent’s bad faith in this matter.
The Panel thus finds that Complainant succeeds under this element 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 <bazardchic.com> be transferred to Complainant.
Georges Nahitchevansky
Sole Panelist
Date: January 9, 2020