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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Sephora v. WhoisGuard

Case No. D2006-0845

 

1. The Parties

The Complainant is Sephora, Boulogne Billancourt, France, represented by LVMH, France.

The Respondent is WhoisGuard, Westchester, California, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <sefora.com> is registered with eNom.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 3, 2006. On July 4, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On July 5, 2006, eNom transmitted by email to the Center its verification response. Email communications were then entered into with the Registrar in order to clarify the identity of the domain name registrant. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on July 20, 2006. This altered the name of the Respondent to that stated above. 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”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 25, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was August 14, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 17, 2006.

The Center appointed Clive L. Elliott as the sole panelist in this matter on August 22, 2006. 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

The Complainant owns the French retail company “SEPHORA”. Sephora was founded in 1970 and become a major player in the retail beauty chain segment in Europe during the 1990s.

The Complainant is the owner of a number of SEPHORA trademark registrations throughout the world including:

- International Trademark Registration N° 398767 dated May 3, 1973;

- US Trademark Registration N° 2431967 dated February 27, 2001; and

- European Community trademark application N° EM788398 filed on March 20, 1998

It owns the domain name <sephora.com>.

The exact nature of the Respondent’s business is unclear but it seems to have in some way facilitated the use of the disputed domain name as a portal.

 

5. Parties’ Contentions

A. Complainant

The Complainant asserts that it operates more than 400 stores in 12 countries and is the leading retail beauty chain in Europe. It points out that through its <sephora.com> website it promotes its business on the web and provides more than 250 brands, in doing so featuring the same extensive selection of perfumes, and makeup and beauty care product as SEPHORA stores. It asserts that it has built up substantial goodwill by its presence on the Internet since 1998.

The Complainant submits that in registering the disputed domain name, the Respondent has engaged in typosquatting, a practice by which “a registrant deliberately introduces slight deviations into famous marks” for commercial gain. The Complainant relies on Marriott Int’l, Inc. v. Seocho, FA 0303000149187 (Nat’l. Arb. Forum April 28, 2003) (finding <marriottt.com> confusingly similar to MARRIOTT.COM).

The Complainant notes that the Respondent’s domain name is virtually identical to the Complainant’s famous SEPHORA trademark – differing only by virtue of the change of “PH” to “F”. It also points out that the Respondent’s domain name is both visually and phonetically similar to the SEPHORA trademark and that this further heightens the likelihood of confusion.

It contends that the disputed domain name is confusingly similar to the Complainant’s globally famous and valuable SEPHORA trademark and the Respondent’s use of the disputed domain name will cause consumers mistakenly to believe that the “www.sefora.com” website is affiliated with or owned by SEPHORA.

The Complainant asserts that the Respondent has no legitimate interest in the domain name <sefora.com>. In particular it states that the Respondent uses the site that resolves to the disputed domain name as a portal and search engine for online stores of perfumes, makeup and beauty care products; thereby diverting consumers who are looking for SEPHORA’s products on the Internet to competing beauty and cosmetics-related websites. It contends that this is being done for commercial gain and is not a legitimate, bona fide use and does not confer legitimate interests in the domain name.

The Complainant submits that it is well-settled that the practice of typosquatting, of itself, is evidence of the bad faith registration of a domain name. The Complainant notes that in relation to the issue of bad faith that the Respondent’s use of the domain name to wrongfully divert consumers looking for the Complainant’s products and services on the Internet to its website is evidence of bad faith as is the allegation that, where it charges third parties a fee to advertise on its site the Respondent’s website contains numerous links to other websites containing pornographic material.

B. Respondent

The Respondent did not reply to the Complainant’s contentions. This requires the Panel to assess, as best as it can, the evidence and submissions filed by the Complainant. Likewise, in the absence of any contrary assertion or dispute those assertions and submissions are presumed to be, prima facie, correct.

6. Discussion and Findings

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the domain name the Complainant must prove that:

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

(ii) the Respondent has no rights or legitimate interest in respect of the domain name; and

(iii) the domain name has been registered in bad faith and is being used in bad faith.

Having considered the Complaint, the Panelist finds that all requirements of paragraph 4(a) of the Policy are met.

The specific grounds of the Policy are now considered in turn.

A. Identical or Confusingly Similar

The evidence in this case is presented in a clear and convincing manner. The Complainant has used the trademark/name SEPHORA for a considerable period of time and it is accepted that it became a major player in the retail beauty chain segment in Europe during the 1990s. Evidence is also provided as to the Complainant’s trademark registrations.

The disputed domain name <sefora.com> while not identical to is undoubtedly very close to the trademark/name SEPHORA. Given the widespread practice of typosquatting, whereby a domain name registrant deliberately introduces slight deviations into famous marks for commercial gain, it is not difficult to conclude that the close similarity between the Complainant’s trademark/name and the disputed domain name is intentional and is designed to confuse the public. On this basis it is found that the disputed domain name is confusingly similar to the trademark/name SEPHORA.

Accordingly, the Panel is satisfied that the first element of the Policy has been met.

B. Rights or Legitimate Interests

The allegation that the Respondent is diverting consumers who are looking for relevant beauty products to competing beauty and cosmetics-related websites is not disputed. The Complainant submits that this is not a legitimate, bona fide use and does not confer legitimate interests in the domain name. There is merit in this submission. See Lexar Media, Inc. v. Michael Huang, WIPO Case No. D2004-1039 (January 26, 2005) (The Respondent’s use was not bona fide where, via typosquatting, the Respondent diverted consumers to his website which then linked to the websites of Complainant’s competitors).

The Panelist concludes that on the basis of the record and in the absence of any effort to contradict the Complainant’s assertions and submissions that a prima facie case is established under this ground. This appears to be a routine case of typosquatting and little more needs to be said, particularly in the face of the Respondent’s rather pointed silence.

Thus the Panel is satisfied that the second element of the Policy has been met.

C. Registered and Used in Bad Faith

The Complainant submits that it is well-settled that the practice of typosquatting, in and of itself, is evidence of the bad faith registration of a domain name. See, Longs Drug Stores California, Inc. v. Shep Dog, WIPO Case No. D2004-1069 (February 28, 2005) (Finding typosquatting to be evidence of bad faith domain name registration). The Panelist endorses that view.

The allegation that the Respondent is using the disputed domain name to direct consumers to websites containing pornographic material is also indicative of bad faith conduct.

It is appropriate in this case to infer that the domain name was adopted and is being used for the purposes contended by the Complainant.

The Panel is therefore satisfied that the third element of the Policy has been met.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <sefora.com> be transferred to the Complainant.


Clive L. Elliott
Sole Panelist

Date: September 4, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0845.html

 

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