The Complainants are Revlon Consumer Products Corporation of New York, United States of America (“United States”), and Revlon (Suisse) S.A. of Schlieren, Switzerland, self-represented.
The Respondent is Wen Zhou/ Zhou Wen of Beijing, China.
The disputed domain name <revlonsale.com> is registered with Jiangsu Bangning Science & Technology Co. Ltd. (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on July 7, 2016. On July 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 11, 2016, the Registrar transmitted by email to the Center its verification response confirming that the first Respondent in the Complaint is listed as the registrant and providing the contact details. The Center sent an email communication to the Complainant on July 11, 2016 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 amendment to the Complaint by email on July 11, 2016. On July 12, 2016, the Center informed the Parties that the Registration Agreement is in Chinese and requested them to comment on the language of the proceeding. The Complainant submitted its request for English to be the language of the proceeding on July 12, 2016. The Respondent did not submit any language request.
The Center verified that the Complaint together with the amendment to 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 both in English and Chinese, and the proceeding commenced on July 21, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 10, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 11, 2016.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on August 17, 2016. 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 Revlon Consumer Products Corporation is a company incorporated in the United States and the Complainant Revlon (Suisse) S.A. is a company incorporated in Switzerland. The Complainants are the owners of numerous registrations for the trade mark REVLON (the “Trade Mark”) worldwide, including Chinese registration No. 7329939 with a registration date of August 7, 2010. The Complainants have manufactured, marketed and sold cosmetics and beauty products under the Trade Mark in the United States and worldwide since 1932. The Trade Mark is a well-known trade mark in relation to such products.
The Respondent is apparently an individual located in China.
The disputed domain name was registered on February 15, 2016.
The disputed domain name resolves to a website (the “Respondent’s Website”) which offers for sale cosmetics and beauty products under the Trade Mark as well as other trade marks of the Complainants.
The Complainants contend that the disputed domain name is confusingly similar or identical to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainants’ contentions.
The language of the registration agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the Parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement. However, paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding, in order to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Complainants made the following submissions in support of its language request:
(1) The disputed domain name is an English language domain name;
(2) The Respondent’s Website contains English language content, including the Complainant’s English language trade marks, and solicits customers from the United States, including via the English language “Live Chat” and “Message Board” featured on the Respondent’s Website; and
(3) It would be costly, time-consuming and to the Complainants’ disadvantage if the Complainants were to be required to translate the Complaint into Chinese.
The Respondent, having received notice of the proceeding in both Chinese and English, did not make any submissions regarding the language of the proceeding and did not file a response.
In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the proposed language, time and costs.
The Panel finds there is sufficient evidence to suggest the likely possibility that the Respondent is conversant in English. Although the content of the Respondent’s Website is predominantly in Chinese, it contains a not insignificant amount of English language content, including in particular the English language Live Chat and Message Board content. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
In all the circumstances, including in particular the Respondent’s failure to take any part in this proceeding, the Panel therefore finds it is not foreseeable that the Respondent would be prejudiced, should English be adopted as the language of the proceeding.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
The Panel finds that the Complainants have rights in the Trade Mark acquired through use and registration.
The disputed domain name comprises the Trade Mark in its entirety, together with the generic word “sale”, which describes the content of the Respondent’s Website, and does not serve to distinguish the disputed domain name from the Trade Mark in any significant way.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark.
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 Complainants have 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 has been used in respect of the Respondent’s Website, which, without the Complainants’ authorisation, promotes and offers for sale cosmetics and beauty products, and without any disclaimer of any relationship with the Complainants. Furthermore, the Complainants’ uncontested evidence herein is that the Respondent’s Website:
(1) Makes unauthorised use of the Complainants’ advertisements, which are protected by copyright;
(2) Makes unauthorised reference to the Complainants’ brand ambassadors;
(3) Makes unauthorised use of the Complainants’ trade marks both on the website and in the metatags for the website; and
(4) Features prominently the Complainants’ REVLON PROFESSIONAL trade mark, which is used by the Complainant only in relation to products sold in professional channels (and not by mass-market retail).
Furthermore, the Complainants’ uncontested evidence is that the content of the Respondent’s Website is identical to the content of the “www.revlonbuy.com” website, which was taken down less than one month prior to the date of the Complaint, following the Complainants’ successful UDRP proceeding taken against the owner of the domain name <revlonbuy.com>.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
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 Complainants’ prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
In light of the evidence of the Respondent’s use of the Respondent’s 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.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being 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 <revlonsale.com> be transferred to the Complainants.
Sebastian M.W. Hughes
Sole Panelist
Dated: August 31, 2016