The Complainant is SGII, Inc., United States of America (“United States”), represented by Gowling WLG (Canada) LLP, Canada.
The Respondent is 李黔 (Li Qian), China.
The disputed domain name <senegece.com> is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”).
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on October 20, 2020. On October 20, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 21, 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 November 6, 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 November 6, 2020.
On October 21, 2020, the Center transmitted an email communication to the Parties in English and Chinese regarding the language of the proceeding. On October 21, 2020, the Complainant submitted a request that English be the language of the proceeding. 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 November 11, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 1, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 11, 2020.
The Center appointed Jonathan Agmon as the sole panelist in this matter on December 23, 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, SGII, Inc., was founded in 1999 and develops and sells beauty and personal care products worldwide. The Complainant began expanding internationally to Canada in 2001, Australia in 2003 and the United Kingdom in 2011. The Complainant can also operates in Switzerland, Poland, and other regions around the globe. The Complainant operates a website at “www.senegence.com”, where it promotes its various products.
The Complainant owns numerous trademark registrations of the term SENEGENCE in many jurisdictions worldwide, including but not limited to the following:
- SENEGENCE (Registration No. 2668790) registered on December 31, 2002 in the United States;
- SENEGENCE (Registration No. 6019870) registered on March 24, 2020 in the United States;
- SENEGENCE INTERNATIONAL (Registration No. 2674637) registered on January 14, 2003 in the United States;
- SENEGENCE (International Registration No. 1443914) registered on November 15, 2018 designating, inter alia, Australia, Colombia, European Union, India, Japan, New Zealand, and Norway; and
- SENEGENCE INTERNATIONAL (International Registration No. 1317404) registered on July 11, 2016 designating, inter alia, Australia, European Union, India, Mexico, and Switzerland.
The disputed domain name <senegece.com> was registered on April 4, 2017 and resolves to an active website with pay-per-click links.
The Complainant’s contentions include the following:
The Complainant argues that the disputed domain name is confusingly similar to the Complainant’s registered SENEGENCE mark as the disputed domain name wholly incorporates the SENEGENCE mark save for an omission of the letter “n” before the letter “c” along with a generic Top-Level Domain (“gTLD”) “.com” that are insufficient to avoid confusing similarity.
The Complainant also argues that the Respondent has no rights or legitimate interests in respect of the disputed domain name as it has not licensed or permitted the Respondent to use any of its trademarks or register the disputed domain name.
The Complainant further argues that the disputed domain name was registered and is being used in bad faith for commercial gain by creating a likelihood of confusion with the Complainant’s SENEGENCE mark and thereby disrupting the business of the Complainant.
The Respondent did not reply to the Complainant’s contentions.
Paragraph 11 of the Rules provides that:
“(a) Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, 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 for the disputed domain name is Chinese.
The Complainant requested that the language of the proceeding be English.
The Respondent did not comment on the language of the proceeding.
The Panel cites the following with approval:
“Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case.” (See Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004).
The Panel finds that in the present case, the following should be taken into consideration upon deciding on the language of the proceeding:
(i) the disputed domain name consists of Latin letters, rather than Chinese characters;
(ii) the Complainant may be unduly disadvantaged by having to conduct the proceeding in the Chinese language;
(iii) according to the screenshot provided by the Complainant, the disputed domain name resolves to a website displaying English words; and
(iii) the Respondent did not object to the Complainant’s request that English be the language of the proceeding.
Upon considering the above, the Panel determines that English be the language of the proceeding.
Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
A registered trademark provides a clear indication that the rights in the mark shown on the trademark certificate belong to its respective owner. The disputed domain name <senegece.com> wholly integrates the Complainant’s SENEGENCE mark in its entirety save for an omission of the letter “n” before the letter “c”. 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 WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.9. In the present case, the omission of the letter “n” does not obviate confusing similarity since the disputed domain name contains sufficiently recognizable aspects of the Complainant’s mark.
Further, it is well established that the addition of the gTLD “.com”, as a standard registration requirement, is disregarded under the first element confusing similarity test. See WIPO Overview 3.0, section 1.11.1.
Consequently, the Panel finds that the Complainant has shown that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
Once the Complainant establishes a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, the burden of production shifts to the Respondent to show that it has rights or legitimate interests in respect to the disputed domain name (see WIPO Overview 3.0, section 2.1).
In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and the Respondent has failed to assert any such rights or legitimate interests.
The Complainant has provided evidence that it owns trademark registrations long before the disputed domain name was registered and that it is not affiliated with nor has it licensed or otherwise permitted the Respondent to use the Complainant’s trademark (see LEGO Juris A/S v. DomainPark Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master, WIPO Case No. D2010-0138).
There is also no evidence on record showing that the Respondent is commonly known by the disputed domain name (see WIPO Overview 3.0, section 2.3). Moreover, the disputed domain name resolves to a pay-per-click website, which does not constitute a legitimate or bona fide use (see WIPO Overview 3.0, section 2.9).
Further, the Respondent did not submit a Response in the present case and did not provide any explanation or evidence to show rights or legitimate interests in the disputed domain name sufficient to rebut the Complainant’s prima facie case.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant must also show that the Respondent registered and is using the disputed domain name in bad faith (see Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy.
The Complainant has submitted evidence, which shows that the Respondent registered the disputed domain name long after the Complainant registered its trademark. According to the evidence filed by the Complainant, the Complainant has owned registration for the SENEGENCE mark since the year 2002. In view of the evidence filed by the Complainant, and the global widespread use of the SENEGENCE mark, it is suggestive of the Respondent’s bad faith in these particular circumstances that the trademark, owned by the Complainant, was registered long before the registration of the disputed domain name. Therefore, it is unlikely that the Respondent did not know of the Complainant’s mark prior to registration of the disputed domain name (see Sanofi-Aventis v. Abigail Wallace, WIPO Case No. D2009-0735).
Furthermore, the disputed domain name incorporates the Complainant’s trademark in its entirety with an intentional misspelling that is an omission of a letter “n” which the Panel finds is an attempt by the Respondent to confuse and/or mislead Internet users seeking or expecting the Complainant. Given that the Complainant uses a domain name consisting of the mark SENEGENCE, i.e., <senegence.com>, unsuspecting Internet users may be confused when looking for the Complainant online. The Panel finds such act by the Respondent amounts to intentionally confuse and/or mislead Internet users seeking or expecting the Complainant. Previous UDRP panels have ruled that in such circumstances “a likelihood of confusion is presumed, and such confusion will inevitably result in the diversion of Internet traffic from the Complainant’s site to the Respondent’s site” (see Edmunds.com, Inc v. Triple E Holdings Limited, WIPO Case No. D2006-1095). To this end, prior UDRP panels have established that attracting Internet traffic by using a domain name that is identical or confusingly similar to a registered trademark may be evidence of bad faith under paragraph 4(b)(iv) of the UDRP.
Given the distinctive nature of the Complainant’s SENEGENCE mark, and given the evidence provided by the Complainant, the Panel is of the view that the Respondent’s use of the disputed domain name for a website offering pay-per-click links to competitor companies in the same industry constitutes bad faith and is indicative of the Respondent’s registration and use of the disputed domain name to attract Internet users to his website for commercial gain by creating a likelihood of confusion with the Complainant’s SENEGENCE mark. Such use also disrupts business of the Complainant.
The Complainant asserts that the practice of typosquatting is by itself evidence of the bad faith registration (see ESPN, Inc. v. XC2, WIPO Case No. D2005-0444; Longs Drug Stores Cal., Inc. v. Shep Dog, WIPO Case No. D2004-1069; Lexar Media, Inc. v. Huang, WIPO Case No. D2004-1039; Wal-Mart Stores, Inc. v. Longo, WIPO Case No. D2004-0816). UDRP panels will normally find that employing a misspelling in this way signals an intention on the part of the respondent (typically corroborated by infringing website content) to confuse users seeking or expecting the complainant. See WIPO Overview 3.0, section 1.9. In the Panel’s view, having taken the above circumstances into account, such behavior by the Respondent constitutes further evidence of bad faith.
Based on the particular circumstances of the present case and the distinctive nature of the SENEGENCE mark, and based on the evidence presented to the Panel, including the registration of the disputed domain name after the registration of the Complainant’s marks, the confusing similarity between the disputed domain name and the Complainant’s marks, the Respondent’s use of the disputed domain name, the fact that there is no plausible good faith use the Respondent may put the disputed domain name to, and the fact that no Response was submitted by the Respondent, the Panel draws the inference that the disputed domain name was 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 <senegece.com> be transferred to the Complainant.
Jonathan Agmon
Sole Panelist
Date: January 21, 2021