Fashion Brands Holding Corporation v. Lapinte Amaury
Claim Number: FA1509001638386
Complainant is Fashion Brands Holding Corporation (“Complainant”), represented by Steven Soloway of Law Office of Steven Soloway, California, USA. Respondent is Lapinte Amaury (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bisoubisoulajungle.com> ('the Domain Name'), registered with OVH sas.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
<<Dawn Osborne of Palmer Biggs Legal>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 17, 2015; the Forum received payment on September 17, 2015. The Complainant was received in both French and English.
On September 18, 2015, OVH sas confirmed by e-mail to the Forum that the <bisoubisoulajungle.com> domain name is registered with OVH sas and that Respondent is the current registrant of the name. OVH sas has verified that Respondent is bound by the OVH sas registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 25, 2015, the Forum served the French language Complaint and all Annexes, including a French language Written Notice of the Complaint, setting a deadline of October 15, 2015 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@bisoubisoulajungle.com. Also on September 25, 2015, the French language Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On October 23, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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
The Complainant is a corporation engaged in the fashion and apparel business utilizing a number of different marks including BISOU BISOU which has been used on clothing and jewellery since 1995 and on handbags since 2000. It owns registered trade marks for BISOU BISOU in countries around the world including the USA and the European Community for its goods. The mark has been widely publicised and is highly recognised.
The Domain Name, registered in 2015, is confusingly similar to Complainant’s BISOU BISOU mark incorporating it in its entirety and merely adding 'lajungle'.
Respondent has no rights or legitimate interests in the Domain Name. Complainant has never granted Respondent permission to use the BISOU BISOU mark. Respondent is in no way affiliated with Complainant and Respondent does not promote the Complainant’s services or goods. Respondent is not making any legitimate non-commercial or fair use of the Domain Name.
Respondent's domain creates a false association with the Complainant and generates initial interest confusion by tricking Internet users into visiting Respondent's site
Respondent registered and is using the Domain Name in bad faith. It registered the Domain Name in order to falsely mislead consumers as to a purported association or affiliation with Complainant for commercial gain. Respondent also uses Bisou's name and information as meta data to trick users into visiting Respondent's web site
B. Respondent
Respondent failed to submit a Response in this proceeding.
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."
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.
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.”).
The Respondent does not explain why they have registered a domain name consisting of the Complainant's trade mark and random additional words. The Respondent does not appear to have any trade marks associated with the name BISOU BISOU. There is no evidence that they are commonly known by this name and they do not have any consent from the Complainant to use this name. They do not appear to have used the Domain Name for any bona fide offering of services or for any use. See Hewlett Packard CO. v Shemesh, FA 434145 (Nat Arb Forum Apr 20, 2005) ('The Panel finds that the [failure to make an active use] of a domain name is not a bona fide offering of goods or services pursuant to Policy 4 (c) (i) or a legitimate non-commercial or fair use pursuant to Policy 4 (c)(iii) Accordingly, the Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name.
The Respondent has given no satisfactory reason why it has a legitimate interest in a domain name comprising the Complainant's trade mark BISOU BISOU and the words 'la' and 'jungle'. . However Panels have historically found that there can be a finding of registration and use in bad faith where there is passive use of a known trade mark in a domain name where there is no response and no explanation as to why the use could be good faith. See the case of Telstra Corporation Limited v Nuclear Marshmellows, WIPO case no D2000-0003. See also DCI SA v Link Commercial Corp, D2000-1232 (WIPO Dec 7, 2000) (Concluding that the respondent's [failure to make an active use] of a domain name satisfies the requirements of 4(a)(iii) of the Policy) The Respondent has not responded to the Complaint and has not explained why they would be entitled to register a domain name including the Complainant's trade mark. As such the Panel finds on the balance of probability that the Respondent registered and used the Domain Name in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bisoubisoulajungle.com> domain name be TRANSFERRED from Respondent to Complainant.
<<Dawn Osborne>>, Panelist
Dated: <<November 5, 2015>>
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