ADMINISTRATION LVER INC. v. Conquer Next
Claim Number: FA0710001103297
Complainant is ADMINISTRATION LVER INC. (“Complainant”), represented by Sébastien
Lapointe, of Holmested et Associés, s.e.n.c.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lavienrose.com>, registered with Fabulous.com Pty Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On November 2, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 23, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <lavienrose.com> domain name is confusingly similar to Complainant’s LA VIE EN ROSE mark.
2. Respondent does not have any rights or legitimate interests in the <lavienrose.com> domain name.
3. Respondent registered and used the <lavienrose.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, ADMINISTRATION LVER INC., and its predecessors
in title have offered women’s lingerie, apparel, and swimming retail store
services under the LA VIE EN ROSE mark since 1986. The LA VIE EN ROSE mark has been registered with
the Canadian Intellectual Property Office (“CIPO”) (Reg. No. TMA367,960 issued
Respondent, Conquer Next, registered the <lavienrose.com>
domain name on
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, Inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Policy ¶ 4(a)(i) places upon Complainant the burden of establishing rights in the LA VIE EN ROSE mark. The Panel concludes that Complainant has met its Policy ¶ 4(a)(i) burden through Complainant’s CIPO and USPTO registrations of the mark. See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”)).
The <lavienrose.com> domain name simply deletes
an “e” from Complainant’s LA VIE EN ROSE mark and adds the generic top-level
domain (“gTLD”) “.com” to the end. These
slight changes to Complainant’s mark are insufficient to distinguish the
disputed domain name from Complainant’s mark.
Accordingly, the Panel concludes that the disputed domain name is
confusingly similar to Complainant’s LA VIE EN ROSE mark under Policy ¶ 4(a)(i). See State
Farm Mut. Auto. Ins. Co. v. Try Harder &
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Policy ¶ 4(a)(ii) places upon Complainant the initial burden of establishing a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name. The Panel concludes that Complainant’s filing of this UDRP proceeding alleging that Respondent lacks all rights and legitimate interests sufficiently meets the burden placed upon Complainant by Policy ¶ 4(a)(ii) and shifts the burden to Respondent to show that such rights or legitimate interests exist. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
In this case, Respondent has failed to submit a Response to the Complaint. Based upon Respondent’s failure to respond, the Panel presumes that Respondent lacks all rights and legitimate interests under Policy ¶ 4(a)(ii). See American Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). The Panel is required to make no further evaluation; however, the Panel will now examine the record to determine if Respondent is able to establish rights or legitimate interests under Policy ¶ 4(c).
There is nothing in the evidence provided indicating that
Respondent, “Conquer Next,” is commonly known by
the <lavienrose.com> domain name. Accordingly, the Panel concludes that
Respondent is unable to establish rights or legitimate interests under Policy ¶
Respondent is using the website
located at the disputed domain name to divert Internet users to the websites of
Complainant’s competitors for the apparent purpose of generating pay-per-click
revenue. Further, Respondent uses the
website to solicit purchase offers from Internet users for the disputed domain
name. The Panel concludes that this
conduct does not constitute a bona
fide offering of goods or services or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(i)
or Policy ¶ 4(c)(iii), respectively. See Yahoo!
Inc. v. Web Master, FA 127717 (Nat.
Arb. Forum Nov. 27, 2002) (finding that the respondent’s
use of a confusingly similar domain name to operate a pay-per-click search
engine, in competition with the complainant, was not a bona fide
offering of goods or services); see also Hewlett-Packard
Co. v. High Performance Networks, Inc., FA 95083 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
is using the <lavienrose.com> domain name to solicit purchase offers for
the disputed domain name from Internet users and divert interested parties to a
SEDO purchase page where they can place their bid. The Panel concludes that Respondent’s conduct
is indicative of bad faith registration and use under Policy ¶ 4(b)(i). See
Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum
Respondent is using the <lavienrose.com> domain name to disrupt Complainant’s business by diverting Internet users seeking Complainant’s products and services to the websites of Complainant’s competitors. Accordingly, the Panel concludes that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iii). See also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites); see EthnicGrocer.com, Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000) (finding bad faith where the respondent’s sites pass users through to the respondent’s competing business).
Respondent is presumed to be commercially benefiting from the confusion created by the disputed domain name’s similarity to Complainant’s mark through the generation of pay-per-click revenue for each diverted Internet user. The Panel concludes Respondent’s behavior is indicative of bad faith registration and use under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lavienrose.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: December 10, 2007
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