The Complainant is S.P.M.D., France, represented by Nameshield, France.
The Respondent is Dengpinghua (邓平华), China.
The disputed domain name <rapphytogel.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 September 16, 2020. On September 17, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 2020, 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 the Complainant on September 22, 2020 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 amended Complaint in English on September 22, 2020.
On September 22, 2020, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on September 22, 2020. The Respondent did not comment on the language of the proceeding.
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 the Respondent in English and Chinese of the Complaint, and the proceedings commenced on September 28, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 18, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 20, 2020.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on November 6, 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 is a French company active in the health industry, and operates under the name “Laboratoires Iprad”. It was created in 1989 and has been developing and providing health and wellness products for women. The Complainant claims it sold 20 million of products worldwide for a revenue of EUR 79 million in 2018.
The Complainant uses the trademark RAP PHYTO for its light legs products, and it owns several trademark registrations for RAP PHYTO, including, for example, the international trademark registration number 1545915, registered on June 12, 2020; the European Union trademark registration number 015235121, registered on August 31, 2016; and the French trademark registration number 4255726, registered on March 10, 2016. Moreover, the Complainant’s group owns the domain name <rapphytogel.fr>, registered on March 31, 2011.
The disputed domain name was created on July 4, 2020. The Complainant submits evidence that the disputed domain name directed to a nearly blank webpage indicating “404 Not Found”. On the date of this decision, the disputed domain name leads to an error page.
The Complainant essentially contends that the disputed domain name is confusingly similar to its trademarks for RAP PHYTO, that the Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered, and is being used in bad faith.
The Complainant claims that its trademarks are highly distinctive. The Complainant particularly submits that there are no justifications for the use of its trademarks in the disputed domain name, and contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name and constitutes registration and use in bad faith.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.
The language of the Registration Agreement is Chinese, and the Complaint is filed in English. On September 22, 2020, the Center notified the Complainant that the language of the Registration Agreement is Chinese. The Complainant requested that the language of the proceeding be English on the same day. The Respondent did not make any comments on the language of the proceeding and did not submit any arguments on the merits.
The Panel has carefully considered all elements of this case, in particular, the Complainant’s request that the language of the proceeding be English; the fact that the disputed domain name consists of Latin scripts; the fact that all communications from the Center have been sent in English and Chinese to the Parties, and the Respondent did not comment on the language of the proceeding and did not submit arguments on the merits (while he had the right to do so in Chinese or English); and the fact that Chinese as the language of the proceeding could lead to unwarranted delay and costs for the Complainant. In view of all these elements, the Panel rules that the language of the proceeding shall be English.
The Policy requires the Complainant to prove three elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Based on the evidence and arguments submitted, the Panel’s findings are as follows:
The Panel finds that the Complainant has shown that it has valid rights in the mark RAP PHYTO based on its intensive use and registration of the same as a trademark globally.
Moreover, as to confusing similarity, the disputed domain name consists of the Complainant’s registered trademark RAP PHYTO, followed by the word “gel”. The applicable generic Top-Level Domain (“gTLD”) “.com” in this case) is viewed as a standard registration requirement, and may as such be disregarded by the Panel. See in this regard the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), section 1.11.1. Moreover, the WIPO Overview 3.0, section 1.7, states: “in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing” (see also Wal-Mart Stores, Inc. v. Richard McLeod d/b/a For Sale, WIPO Case No. D2000-0662).
The Panel concludes that the disputed domain name contains the entirety of the Complainant’s trademark, as its only distinctive feature. It is the Panel’s views that the addition of the word “gel” after the Complainant’s trademark does not avert the confusing similarity between the disputed domain name and the Complainant’s trademark. Moreover, the Panel notes that the added word “gel” is related to the Complainant’s Rap Phyto branded products. Accordingly, the Panel rules that the disputed domain name is confusingly similar to the Complainant’s registered trademark, and that the Complainant has satisfied the requirements of the first element under the Policy.
On the basis of the evidence and arguments submitted, the Panel holds that the Complainant has made out a prima facie case that the Respondent is not, and has never been, an authorized reseller, service provider, licensee or distributor of the Complainant, and is not making legitimate noncommercial use or fair use of the disputed domain name. The disputed domain name is inactive. As such, the Panel finds that the burden of production regarding this element shifts to the Respondent (see WIPO Overview 3.0, section 2.1). However, no evidence or arguments have been submitted by the Respondent in reply.
Furthermore, the Panel notes that the nature of the disputed domain name, being confusingly similar to the Complainant’s trademarks, carries a risk of implied affiliation with the Complainant (see also WIPO Overview 3.0, section 2.5.1), and that the Respondent is not commonly known by the disputed domain name.
On the basis of the foregoing, the Panel considers that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply, and that the Complainant has satisfied the requirements of the second element under the Policy.
The Panel holds that the registration of the disputed domain name was clearly intended to take unfair advantage of the Complainant’s trademarks, by using such trademarks to mislead and divert consumers to the disputed domain name. Given the distinctiveness and prior registration of the Complainant’s trademarks, and composition of the disputed domain name including the word “gel” related to the Complainant’s products, the Panel holds that the registration of the disputed domain name, clearly targeting the Complainant’s trademarks, was obtained in bad faith.
Moreover, even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned registered trademarks in RAP PHYTO and used these extensively. In the Panel’s view, the preceding elements clearly establish the bad faith of the Respondent in registering the disputed domain name.
As to use of the disputed domain name in bad faith, the disputed domain name resolves to an inactive webpage. UDRP panels have found that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding. See WIPO Overview 3.0, section 3.3. The Panel finds so under the circumstances of this case.
The Panel has reviewed all elements of this case, and in particular: the confusing similarity of the disputed domain name to the Complainant’s trademarks, the high degree of distinctiveness of the Complainant’s trademarks, and the fact that the Complainant’s group owns a prior domain name <rapphytogel.fr>. On the basis of the foregoing elements, the Panel rules that it has been demonstrated that the Respondent has used, and is using the disputed domain name in bad faith.
Finally, the Respondent failed to provide any response or evidence to establish his good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third element under 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 <rapphytogel.com> be transferred to the Complainant.
Deanna Wong Wai Man
Sole Panelist
Date: November 20, 2020