The Complainant is Pernod Ricard, SA, France, represented internally.
The Respondent is Ya Lan Yue, China.
The disputed domain name <permodricard.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 12, 2020. On February 13, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 14, 2020, 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 February 21, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 12, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 13, 2020.
The Center appointed Steven Auvil as the sole panelist in this matter on March 30, 2020. 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 Complainant, based in Paris, France, operates in the wine and spirits industry and was established in 1975 through the merger of the companies Ricard S.A. and Pernod S.A. The Complainant is the world’s second-largest wine and spirits seller and owns a large portfolio of premium brands including ABSOLUT vodka, BALLANTINE’S Scotch whisky, CHIVAS REGAL Scotch whisky, JAMESON Irish whisky, HAVANA CLUB Cuban rum, MALIBU rum, PERRIER-JOUET Champagnes, and MARTELL Cognac.
The Complainant owns marks in connection with the PERNOD RICARD name including European Union Registration No. 01331874 (registered on March 15, 2012), International Trademark No. 892637 (registered June 13, 2016), and French Registration No. 053401072 (registered on December 23, 2005). The Complainant owns domain names in connection with the PERNOD RICARD name including <pernodricard.com>, <pernod-ricard.com>, <pernodricard.cn>, <pernod-ricard.cn>, <pernodricard.info>, and <pernod-ricard.info>.
The disputed domain name <permodricard.com> was registered on March 3, 2019. The disputed domain name resolves to a website that uses Chinese characters and shows the MARTELL Cognac brand that, as set forth above, is part of the brand portfolio owned by the Complainant.
The Complainant alleges that the disputed domain name is identical or confusingly similar to its PERNOD RICARD marks because the disputed domain name deliberately introduces a typographical error in which the letter “n” is changed to an “m.”
The Complainant asserts that the Respondent has no rights or legitimates interests in the disputed domain name. The Complainant states that it has never given the Respondent any authorization to use the PERNOD RICARD mark, the Respondent is not an authorized dealer of the Complainant, and the Respondent has never had a business relationship with the Complainant.
The Complainant further asserts that the disputed domain name was registered and is being used in bad faith by the Respondent. The Complainant alleges that the Respondent registered and is using the disputed domain name in bad faith to intentionally attract individuals/users for commercial gain by creating a likelihood of confusion with the Complainant’s PERNOD RICARD marks as to the source, sponsorship, or affiliation of the Respondent’s website or a location or of a product or service on the Respondent’s website or location. The Complaint requests that the disputed name be transferred to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
According to paragraph 15(a) of the Rules: “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the disputed domain name is identical or confusingly similar to a trademark or a service in which the Complainant has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
In view of the Respondent’s failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant’s undisputed allegations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009 (in the absence of a response, it is appropriate “to accept as true all of the allegations of the Complaint.”).
Based on the foregoing guidance, the Panel makes the following findings and conclusions on the basis of the allegations and evidence contained in the Complaint and reasonable inferences drawn from them.
The Complainant is an international company operating in the wines and spirits industry. The Complainant is the owner of several marks containing the PERNOD RICARD name. In addition to these marks, the Complainant owns the domain name <pernodricard.com>. The Panel therefore finds that the Complainant has rights in the PERNOD RICARD marks.
Here, there is slight difference between the disputed domain name <permodricard.com> and the PERNOD RICARD marks in which the Complainant has rights. As set forth in section 1.9 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”),“[a] domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element.” See decisions in Comerica Bank v. Online Management / Registration Private, Domains By Proxy, LLC, WIPO Case No. D2014-1018 (disputed domain name incorporated full mark of the Complainant with a misspelling of the Complainant’s mark that changed the letter “o” to the numeral “0”), Twitter, Inc. v. Ahmet Ozkan, WIPO Case No. D2014-0469 (disputed domain name incorporated full mark of the Complainant with a misspelling of the Complainant’s mark that changed the letter “I” with Turkish-character dotless letter “ı”), Sanofi v. Domains By Proxy, LLC / domain admin, WIPO Case No. D2013-0368 (disputed domain name incorporated full mark of the Complainant with a misspelling of the Complainant’s mark that changed the letter “o” to the letter “i”).
Section 1.9 of WIPO Overview 3.0 provides the following examples of common, obvious, or intentional misspellings of a mark that panels have considered to be confusingly similar: “(i) adjacent keyboard letters, (ii) substitution of similar-appearing characters (e.g., upper vs lower-case letters or numbers used to look like letters), (iii) the use of different letters that appear similar in different fonts, (iv) the use of non-Latin internationalized or accented characters, (v) the inversion of letters and numbers, or (vi) the addition or interspersion of other terms or numbers.” (Emphasis added.)
In the present case, the disputed domain name misspells the PERNOD RICARD name by changing the letter “n” to an “m.” The Panel notes that the letters “n” and “m” are adjacent keyboard letters on the ubiquitous “QWERTY” keyboard layout. Accordingly, the Panel finds that the Complainant has proven that the disputed domain name is confusing similar to the PERNOD RICARD marks in which the Complainant has rights. Therefore, the first element of paragraph 4(a) of the Policy is met.
From the Complainant’s allegations and evidence, the PERNOD RICARD marks are distinctive and well-known marks registered by the Complainant. Moreover, the Complainant did not license or otherwise authorize use by the Respondent of the PERNOD RICARD marks. Therefore, the Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
Section 2.1 of WIPO Overview 3.0, provides that “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.”
In the present case, the Respondent has failed to provide any evidence demonstrating rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. Therefore, the second element of paragraph 4(a) of the Policy is met.
Section 3.1.4 of WIPO Overview 3.0 further provides that “[p]anels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith.” (Emphasis added.) Additionally, Section 3.2.1 of WIPO Overview 3.0 provides that “[p]articular circumstances panels may take into account in assessing whether the respondent’s registration of a domain name is in bad faith include: (i) the nature of the domain name (e.g., a typo of a widely-known mark, or a domain name incorporating the complainant’s mark plus an additional term such as a descriptive or geographic term, or one that corresponds to the complainant’s area of activity or natural zone of expansion), (ii) the chosen top-level domain (e.g., particularly where corresponding to the complainant’s area of business activity or natural zone of expansion), (iii) the content of any website to which the domain name directs, including any changes in such content and the timing thereof, (iv) the timing and circumstances of the registration (particularly following a product launch, or the complainant’s failure to renew its domain name registration), (v) any respondent pattern of targeting marks along a range of factors, such as a common area of commerce, intended consumers, or geographic location, (vi) a clear absence of rights or legitimate interests coupled with no credible explanation for the respondent’s choice of the domain name, or (viii) other indicia generally suggesting that the respondent had somehow targeted the complainant.” (Emphasis added.)
In the present case, the disputed domain name is a typo of the PERNOD RICARD marks owned by the Complainant. Additionally, the Respondent has not provided any evidence demonstrating rights or legitimate interests in the disputed domain name, nor has the Respondent provided a credible explanation for the disputed domain name choice. Accordingly, the Panel finds that the disputed domain name has been registered and is being used in bad faith. Therefore, the third element of paragraph 4(a) of the Policy is met.
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 <permodricard.com> be transferred to the Complainant.
Steven Auvil
Sole Panelist
Date: April 13, 2020