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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Visiomed Group v. Mojeer Salman, Gunay International

Case No. D2017-2375

1. The Parties

Complainant is Visiomed Group of Paris, France, represented by Coblence & Associés, France.

Respondent is Mojeer Salman, Gunay International of Nablus, West Bank, Palestine.

2. The Domain Name and Registrar

The disputed domain name <bewell-es.com> is registered with GoDaddy.com, LLC (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 1, 2017. On December 1, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 4, 2017, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on December 21, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 10, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on January 11, 2018.

The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on January 24, 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.

4. Factual Background

Complainant specializes in medical device products, including a range of smart connected devices such as thermometers, blood pressure monitors, handheld electrocardiogram devices, et cetera, marketing under the name "Bewell Connect".

Complainant is the owner of numerous International, European Union and French trademark registrations for the marks BEWELL, BEWELL CONNECT, BEWELL CHECKUP, BEWELLXPERT, and BEWELL COACH. Complainant submitted evidence of its registrations with the Complaint, including the French trademark registration number 3984141, registered on February 19, 2013, for the mark BEWELL.

Complainant also owns the domain name <bewell-connect.com>, registered October 16, 2013.

The disputed domain name was registered on August 20, 2017. It resolves to a website purporting to offer services from a "professional medical staff".

5. Parties' Contentions

A. Complainant

Complainant contends that the disputed domain name is identical or confusingly similar to Complainant's trademark, that Respondent has no rights or legitimate interests in the disputed domain name and that the disputed domain name was registered and is being used in bad faith.

B. Respondent

Respondent did not reply to Complainant's contentions.

6. Discussion and Findings

Complainant has the burden of proving each of the following three elements under paragraph 4(a) of the Policy in order to be entitled to a transfer of the disputed domain name:

(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii) That 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.

A. Identical or Confusingly Similar

Complainant has established registered trademark rights in the mark BEWELL and related marks incorporating the term "Bewell". The disputed domain name incorporates the mark in its entirety except for the addition of the Spanish country designation "-es" and the generic Top-Level Domain ("gTLD") suffix ".com". This geographic extension and gTLD suffix add no distinguishing feature.

The Panel finds that the disputed domain name is confusingly similar to a trademark in which Complainant has rights.

B. Rights or Legitimate Interests

Based on previous UDRP decisions, a complainant is required to make out "a prima facie case that the respondent lacks rights or legitimate interests". Once such a prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, the complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 2.1.

Complainant's allegations in the Complaint and evidence submitted on this issue are sufficient to make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.

Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services. Complainant submits that Respondent has never registered BEWELL as a trademark and has never acquired any common law rights in this mark. There is no evidence that Respondent has been commonly known by the disputed domain name. Respondent is not a licensee of Complainant's trademarks and has not otherwise obtained authorization to use Complainant's marks. In Respondent's response to Complainant's cease‑and‑desist letter of October 12, 2017, Respondent claims to be a web designer. Respondent is using the disputed domain name in connection with what appears to be a fake website template purporting to offer various services (including laser hair removal and tattoo services), but with a homepage consisting of nonsensical text and a business address in "Palestine – West Bank – Ramallah".

Respondent has not submitted any evidence during the course of this proceeding to rebut Complainant's contentions.

The Panel finds on the basis of the evidence in front of it that Respondent has no rights or legitimate interests in respect of the disputed domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy lists a number of circumstances that, without limitation, are deemed to be evidence of registration and use of a domain name in bad faith. Circumstances that "shall be evidence" of bad faith include facts indicating an intentional attempt to attract for commercial gain Internet users to a website by creating a likelihood of confusion with another's mark as to the source, sponsorship, affiliation, or endorsement of the website, and circumstances indicating that Respondent registered the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or to a competitor of the Complainant, for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the domain name.

Here, the circumstances indicate that Respondent registered the disputed domain name primarily for the purpose of selling the domain name to Complainant. In view of Complainant's registered trademark rights and longstanding use of the mark incorporated in the disputed domain name, Respondent knew or should have known about Complainant's mark at the time it registered the disputed domain name.

On October 12, 2017, Complainant sent a formal notice to Respondent requesting transfer of the disputed domain name. Respondent replied by stating "I'm a web designer, so I can remove or transfer domain to you if you pay 1200 euros."

Complainant replied by informing Respondent that his proposed transaction was not acceptable. Respondent immediately replied by asking how much Complainant could pay.

Thus, the record indicates that Respondent intended to sell the disputed domain name to Complainant for a price in excess of the reasonable registration costs. Complainant's rights in its BEWELL and related marks predate the registration of the disputed domain name. It is most likely that Respondent was actually aware of Complainant's marks at the time the disputed domain name was registered, and that Respondent registered it with Complainant's marks in mind.

The Panel finds that the disputed domain name has been registered and is being used in bad faith.

7. Decision

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 <bewell-es.com> be transferred to Complainant

Lynda J. Zadra-Symes
Sole Panelist
Date: February 7, 2018

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