AUBADE PARIS v. Domain Protection Services, Inc.
Claim Number: FA2207002006064
Complainant: AUBADE PARIS of Paris, France.
Complainant Representative: Germain Maureau of Lyon, France.
Respondent: Domain Protection Services, Inc. of Denver, Colorado, US.
REGISTRIES and REGISTRARS
Registries: Radix FZC
Registrars: Name.com, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Examiner in this proceeding.
Peter Müller, as Examiner.
Complainant submitted: July 28, 2022
Commencement: July 29, 2022
Default Date: August 15, 2022
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
No multiple Complainants or Respondents and no multiple disputed domain names require dismissal.
Findings of Fact:
Even though the Respondent has defaulted, URS Procedure 1.2.6. requires the Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1.] The registered domain name is identical or confusingly similar to a word mark:
(i) for which the Complainant holds a valid national or regional registration and that is in current use; or
(ii) that has been validated through court proceedings; or
(iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.
The Complainant provided documentary evidence that it is registered owner of the EU trademark registration no. 001331479 AUBADE, which was registered on October 18, 2000, covering goods in class 25, as well as documents to show that the trademark is in current use.
The disputed domain name fully incorporates the Complainant’s AUBADE Mark and is confusingly similar to such mark. It is well established that the addition other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element where the relevant trademark is recognizable within the disputed domain name. Furthermore, the specific top-level domain name is generally not an element of distinctiveness that can be taken into consideration when evaluating the identity or confusing similarity between the complainant’s trademark and the disputed domain name.
The Examiner finds that the Complainant satisfied the elements of URS Procedure 1.2.6.1.
[1.2.6.2.] The Respondent has no legitimate right or interest to the disputed domain name.
The Complainant argues that there is no business affiliation between the parties, nor any permission or license given to the Respondent by the Complainant to use the AUBADE Mark in a domain name or on a website. The Respondent did not deny these assertions in any way and therefore failed to prove any rights or legitimate interests in the disputed domain name.
Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent. Therefore, the Examiner finds that the Respondent has no rights to or legitimate interests in the disputed domain name and that the Complainant satisfied the elements of URS Procedure 1.2.6.2.
[1.2.6.3.] The disputed domain name was registered and is being used in bad faith.
The Complainant states that the disputed domain name was registered and is being used in bad faith. It argues that the Respondent tried to use the reputed name and trademarks Aubade on the Internet in order to create a commercial benefice for himself.
Given that the Respondent offers products branded with the AUBADE Mark, the Examiner accepts that the Respondent was aware of the AUBADE Mark at the time of the registration of the disputed domain name and therefore registered the disputed domain name in bad faith. As to bad faith use, the Respondent was, in all likelihood, trying to divert traffic intended for the Complainant's website to its own for commercial gain as set out in URS Procedure 1.2.6.3.d.
The Examiner finds that the disputed domain name was registered and is being used in bad faith and that the Complainant satisfied the elements of URS Procedure 1.2.6.3.
No abuse or material falsehood.
After reviewing the Complainant’s submissions, the Examiner determines that the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain names be SUSPENDED for the duration of the registration.
<deaubade.store>
Mr. Peter Müller, Examiner
Dated: August 15, 2022
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