The Complainant is Conseil NR of Verson, France, represented by Deshoulières, France.
The Respondent is Sedric Levasseur of Cherkassy, Ukraine.
The disputed domain name <buyfollowers.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 30, 2015. On November 2, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 2, 2015, 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 November 12, 2015. In accordance with the Rules, paragraph 5, the due date for Response was December 2, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 3, 2015.
The Center appointed Luca Barbero as the sole panelist in this matter on December 11, 2015. 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 is the owner of the French Trademark registration No. 4095666 for BF BUY FOLLOWERS (figurative mark), filed on June 4, 2014, in classes 35, 38 and 42, and of the Community Trademark No. 13313838 for BF BUY FOLLOWERS (figurative mark), filed on September 30, 2014, in classes 35, 38 and 42.
The Complainant is also the owner of the domain name <buyfollowers.fr>, registered on January 14, 2013. On the Complainant’s web site “www.buyfollowers.fr”, users can purchase followers for their accounts and pages on social media such as Facebook, Twitter, Youtube and Instagram, in order to increase the number of their supporters.
The disputed domain name <buyfollowers.com> was registered on February 23, 2009 and, according to the evidence on records, has not been used in connection with an active web site.
The Complainant contends that the disputed domain name is confusingly similar to its trademark BF BUY FOLLOWERS from a phonetic, visual and conceptual point of view, and states that a consumer could believe that both trademark and the disputed domain name are owned by the same company.
The Complainant asserts that the Respondent has no right or legitimate interest in the disputed domain name because it has not used, or demonstrated any intention to use, the disputed domain name actively, and the dispute domain name “seems to be for sale” since the Respondent acquired the disputed domain name.
With reference to the circumstances evidencing bad faith, the Complainant argues that, although the disputed domain name was registered on February 23, 2009, the Respondent only purchased it on June 3, 2014, shortly before the filing of the Complainant’s trademarks.
The Complainant states that it exploits a web site under the domain name <buyfollowers.fr> since September 6, 2013, and that its web site is very successful and renowned, being the first result found on the search engine “www.google.fr” with the keywords “Buy” and “Followers”.
Attached to the Complainant as Annex 9 is a Complainant’s declaration stating that the Complainant’s work to optimize the ranking of its web site on search engines consists in the following activities, done regularly, at least on a weekly basis: settings and configuration of meta-tags; filling of the pages with specific and relevant contents; and net-linking work, which consists in raising the presence of the web site on various directories or press releases.
The Complainant also alleges that the Respondent is French or, at least, speaking French, as the Respondent’s name and the language of its Skype account are French. In view of the above, the Complainant concludes that the Respondent “could only be aware of the Complainant and its business activity”.
The Complainant submits that the Respondent was aware of the existence of the Complainant and registered the disputed domain name primarily for the purpose of selling it to the Complainant or to a competitor of the Complainant, without any intention to exploit it in connection with an active web site.
The Complainant informs the Panel that it contacted the Respondent offering an amount of USD 500,000, and that the resulting discussion showed that the disputed domain name was for sale, that the Respondent is used to buy and sale domain names, usually for high prices, that the Respondent’s address, as recorded in the WhoIs records at that time, was false, and the Respondent’s business methods “are shady at best”.
The Complainant concludes that the Respondent purchased the disputed domain name, despite knowledge of the Complainant’s activities, with the sole purpose of selling it for a high price, and that the registration and use of the disputed domain name by the Respondent was thus made in bad faith.
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 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 registered by the Respondent 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.
The Complainant has provided evidence of ownership of trademark registrations for BF BUY FOLLOWERS. The location of the trademarks, their date of registration and the goods and/or services for which they are registered, are all irrelevant for the purpose of finding rights in a trademark under the first element of the UDRP (see paragraph 1.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)).
The Complainant’s registered marks consists in the words BF BUY FOLLOWERS written in stylized characters and with the addition of figurative elements. As highlighted in paragraph 1.11 of the WIPO Overview 2.0, figurative, stylized or design elements in a trademark are generally incapable of representation in a domain name and, therefore, are typically disregarded for the purpose of assessing identity or confusing similarity, unless they form an especially prominent or distinctive part of the trademark overall.
The Panel finds that the prominent part of the Complainant’s trademark BF BUY FOLLOWERS is the textual component and that, from a straightforward visual or aural comparison of this portion of the trademark with the alphanumeric string in the disputed domain name, the two signs are confusingly similar, as they both encompass the words “buy” and “followers” written in subsequence, while the prefix “bf” in the trademark and the Top-Level suffix in the disputed domain name can be disregarded, in the Panel’s view, for the purpose of this assessment.
In view of the above, the Panel finds that the Complainant has proven that the disputed domain name is confusingly similar to trademarks in which the Complainant has established rights according to paragraph 4(a)(i) of the Policy.
It is not necessary for the Panel to make a finding under this section since the Complainant, as highlighted in the following paragraphs, has failed to prove the Respondent’s bad faith.
The Panel finds that the Complainant has failed to demonstrate that the Respondent registered and used the disputed domain name in bad faith for the following reasons.
The first of the Complainant’s trademark registrations for BF BUY FOLLOWERS was filed on June 4, 2014. The Complainant has submitted limited proof of use of its trademark BF BUY FOLLOWERS and its web site “www.buyfollowers.fr”, consisting in some invoices issued against clients since September 8, 2013 showing the Complainant’s figurative trademark in their headings, a declaration confirming the active use of the web site “www.buyfollowers.fr” since September 6, 2013 and a Google Analytics Audience Overview from October 1, 2013 and October 28, 2015.
As highlighted above, the Complainant contends that, although the disputed domain name was registered on February 23, 2009, it was purchased by the Respondent on June 3, 2014. The Respondent has not commented this assertion and did not submit a Response. The Panel has nevertheless carefully reviewed the Complaint and related Annexes and has found no evidence to substantiate such Complainant’s allegation besides the “update date” in the WhoIs records of the disputed domain name submitted by the Complainant as Annex 2 (June 3, 2014), which does not necessarily indicate an ownership change but could well be the date of any other update in the WhoIs details.
Even supposing that, as alleged by the Complainant, the disputed domain name was indeed only acquired by the Respondent on June 3, 2014 – i.e. still one day before the filing of the first trademark registration of the Complainant -, the Panel finds that, based on the documents and statements on records as mentioned in the paragraphs above, the Complainant has failed to provide any evidence that the Respondent acquired the disputed domain name in bad faith.
In the pre-complaint correspondence exchanged by the parties and attached to the Complaint at Annex 6, the Respondent did not indicate to be aware of the Complainant and its trademark BF BUY FOLLOWERS. Moreover, the Panel finds that the circumstance that the Respondent might be French like the Complainant, as the Respondent’s name and the Respondent’s indication of the language spoken on its Skype account could suggest - notwithstanding the indication of an address based in Ukraine in the WhoIs records -, is not sufficient, in the absence of additional elements, to conclude that the Respondent intended to trade off the Complainant’s trademark rights through the registration of the disputed domain name.
Indeed, the circumstances of the case suggest that the Respondent simply registered the disputed domain name in light of the generic meaning of the corresponding expression “buy followers”, which refers to the practice of purchasing services enabling to increase the number of followers on social media accounts and is not referable exclusively to the Complainant. Indeed, while inserting the words “buy followers” to a browser, the results display a multitude of websites suggesting similar type of social media services.
In view of the above, also the Respondent’s indication that it would have accepted the Complainant’s unsolicited offer of USD 500,000 for the disputed domain name consisting of generic terms does not prove bad faith directed to the Complainant. Furthermore, also the Respondent’s initial failure to keep its contact details updated, is not sufficient to prove the Respondent’s bad faith in this case.
For the foregoing reasons, the Complaint is denied.
Luca Barbero
Sole Panelist
Date: December 26, 2015