Lionel Darolles v. Data Protected et al.
Claim Number: FA2001001879302
Complainant: Lionel Darolles of Paris, France.
Complainant Representative: DOMAINOO of Paris, France.
Respondent: Nils Ellis of Austin, Texas, US.
Respondent Representative: None
REGISTRIES and REGISTRARS
Registries: Binky Moon, LLC
Registrars: eNom, LLC
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Examiner in this proceeding.
Terry F. Peppard, as Examiner.
Complainant submitted: January 17, 2020
Commencement: January 21, 2020
Default Date: February 5, 2020
Having reviewed the relevant communications record, 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") to give to Respondent notice of the commencement of this proceeding and an opportunity to answer and defend against the allegations of the Complaint filed herein.
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Notwithstanding that Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make out a prima facie showing, by clear and convincing evidence, for each of the following elements of the Procedure in order to obtain a determination that a domain name should be suspended:
i. that the registered domain name is identical or confusingly similar to a word mark for which the Complainant holds a valid national or regional registration that is in current use;
ii. that the registrant (Respondent) has no legitimate right to or interest in the domain name; and
iii. that the domain name was registered or is being used by the registrant (Respondent) in bad faith.
In its Complaint, Complainant shows that it holds a valid registration for the mark LVMH, which is on file with the Institut National de la Propriété Industrielle of France as Registry No. 1399207, registered on October 26, 2017, in various international classes, and that the same mark is in current use. Respondent does not dispute any of this.
The public record shows that Respondent registered the challenged domain name, <lvmh.digital>, on July 23, 2019.
Further facts pertinent to our inquiry are set out below under the appropriate headings.
IDENTITY OR CONFUSING SIMILARITY
There is no dispute in the record either that Complainant holds a valid national or regional registration for its LVMH mark or that is in current use.
And, under URS protocols, the Top Level Domain (“TLD”) “.digital” must be disregarded in our analysis of the question of identity or confusing similarity as between Respondent’s <lvmh.digital> domain name and Complainant’s LVMH mark. This is because every domain name requires a TLD. Therefore, on the record before us, there can be no dispute that the <lvmh.digital> domain name is both substantively identical and confusingly similar to Complainant’s LVMH mark. Accordingly, we find all of these as established facts.
REGISTRANT’S RIGHTS OR INTERESTS
Complainant secured the protection of registration for its mark in 2017, while Respondent obtained registration for its <lvmh.digital> domain name only much later, in 2019. As a consequence, Complainant’s rights in its mark are senior in time to any claim Respondent might have made for rights to or legitimate interests in the domain name. Moreover, Complainant asserts that Respondent is not authorized to register a domain name incorporating its LVMH mark, and the record before us does not reflect any indication that Respondent, identified in the pertinent WHOIS information only as “Redacted For Privacy,” has been commonly known by the <lvmh.digital> domain name. To this the Complaint adds that the only use to which the domain name has been put by Respondent is that it redirects Internet users to Complainant’s official website at <lvmh.com>, which tends to cause confusion among such users as to the possibility of Complainant’s association with the domain name, and, as well, suggests that Respondent registered the domain name with the intent to employ it to carry on fraudulent “phishing” for the sensitive personal financial information of unsuspecting Internet users. In these circumstances, we may comfortably conclude that Respondent seeks to profit illicitly from the use it makes of the domain name. For these reasons, and, inasmuch as it appears that Respondent has failed to object to any of Complainant’s allegations, we further conclude that Respondent is not making a bona fide offering of goods or services by means of the domain name and that its use of the domain name is not a legitimate non-commercial or fair use. And, from all of this, we determine that Respondent has no rights to or legitimate interests in the disputed domain name.
BAD FAITH REGISTRATION OR USE
Under the Policy, essentially the same considerations, described above, that make it clear that Respondent has no rights to or legitimate interests in the <lvmh.digital> domain name are also pertinent to an analysis of the further question whether the domain name has been registered or is being used by Respondent in bad faith. We may, however, also take into account that it is evident from the facts before us that Respondent knew of Complainant and its rights in the LVMH mark when Respondent registered the domain name. Accordingly, we determine both that Respondent’s employment of the domain name is disruptive of Complainant’s business and that Respondent has both registered and now uses the domain name in bad faith.
Upon review of Complainant’s submissions, and in light of our findings, we determine that Complainant has adequately demonstrated all three required elements of the URS Procedure to a standard of clear and convincing evidence. It is, therefore, Ordered that the domain name <lvmh.digital> be SUSPENDED for the duration of its registration.
Terry F. Peppard, Examiner
Dated: February 6, 2020
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