DEEZER S.A. v. et al.
Claim Number: FA2009001913493
Complainant: DEEZER S.A. of Paris, France.
Complainant Representative: DOMGATE of Grasse, France.
Respondent: Gao Hai Sheng of Zhou Kou Shi He Nan, China.
REGISTRIES and REGISTRARS
Registries: GMO Registry, Inc.
Registrars: West263 International Limited
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 Examiner in this proceeding.
Flip Jan Claude Petillion, as Examiner.
Complainant submitted: September 24, 2020
Commencement: September 25, 2020
Default Date: October 12, 2020
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.
The Complainant, Deezer S.A., is an online music streaming service launched in 2007 and currently has more than 14 million monthly active users. The Complainant owns several trademarks for the sign DEEZER, including a U.S. word mark registered under No. 3,803,079 and an EU word mark registered under No. 008650079, both in relation to its music services.
Respondent registered the disputed domain name <deezer.shop> on May 6, 2020. According to the Complainant’s undated evidence, the disputed domain name initially referred to an e-commerce website offering all kinds of goods for sale, including products competing with the Complainant’s services such as CD’s. On May 15, 2020 the Complainant’s representative sent a cease and desist letter to the email address indicated on this website, to the Registrar and the hosting provider. The Complainant’s representative claims it obtained no reply. The disputed domain name is currently inactive.
Even though the Respondent has defaulted, URS Procedure 1.2.6, requires 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(s) is/are 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.
Determined: Finding for Complainant
The record makes clear that the Complainant "holds a valid national or regional registration and that [it] is in current use". The Examiner finds that the second-level portion of the disputed domain name is identical to the Complainant’s DEEZER registered trademark. As the top level domain is irrelevant in assessing identity or confusing similarity, the new gTLD “.SHOP” is of no consequence here (Facebook Inc. v. Radoslav, Claim Number: FA1308001515825). As the registered domain name is identical to a word mark for which the Complainant holds a valid national or regional registration that is in current use, the Examiner considers that the Complainant has satisfied the first element of the URS in accordance with paragraph 1.2.6.1 of the URS.
[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.
Determined: Finding for Complainant
The Complainant has not authorized the Respondent to use its registered DEEZER trademark. The Respondent has not submitted any evidence to prove that he or she is commonly known under the disputed domain name. There is no evidence about rights or legitimate interest in DEEZER and the disputed domain name, or evidence about a fair use either. According to the Complainant’s evidence, the disputed domain name initially referred to an e-commerce website and is currently inactive.
The Examiner observes that the disputed domain name is identical to the Complainant’s DEEZER trademark. Combined with the gTLD “.SHOP”, which can be considered as referring to the Complainant’s online shop, the Examiner finds that the disputed domain name carries a high risk of implied affiliation with the Complainant and cannot constitute fair use (see section 2.5.1 of WIPO Overview 3.0). The Respondent does not contest the arguments of the Complainant. Therefore, the Examiner finds that the second element for the Complainant to obtain the suspension of a domain name under URS 1.2.6.2 has also been proven.
[URS
1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
a. Registrant has registered or acquired the domain name primarily for the
purpose of selling, renting or otherwise transferring the domain name
registration to the complainant who is the owner of the trademark or service
mark or to a competitor of that complainant, for valuable consideration in excess
of documented out-of-pocket costs directly related to the domain name; or
b. Registrant has registered the domain name in order to prevent the trademark
holder or service mark from reflecting the mark in a corresponding domain name,
provided that Registrant has engaged in a pattern of such conduct; or
c. Registrant registered the domain name primarily for the purpose of
disrupting the business of a competitor; or
d. By using the domain name Registrant has intentionally attempted to attract
for commercial gain, Internet users to Registrant’s web
site or other on-line location, by creating a likelihood of confusion with
the complainant’s mark as to the source, sponsorship,
affiliation, or endorsement of Registrant’s web site or location or of a
product or service on that web site or location.
Determined: Finding for Complainant
The Complainant has provided evidence of the well-known and distinctive character of its DEEZER trademark, which has also been confirmed in previous UDRP cases. Given the fact that the disputed domain name is identical to this trademark, the Examiner finds that the Respondent must have had the Complainant's trademark in mind when registering the disputed domain name.
In the circumstances of this case, the Examiner finds that there are indications that the disputed domain name was used to attract, for commercial gain, Internet users to the Respondent’s website, by creating a likelihood of confusion with the Complainant's DEEZER trademark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Indeed, it appears that the disputed domain name initially referred to an e-commerce website offering all kinds of goods for sale, including products competing with the Complainant’s services such as CD’s.
Moreover, the Examiner observes that the disputed domain name is currently inactive. Although the Complainant does not provide proof of the timing of the deactivation of the disputed domain name, the Examiner finds that it has probably been done subsequently to the Complainant’s cease and desist letter. In the Examiner’s view, this could be considered as an admission of the Complainant’s claim. Finally, the Examiner finds that it is difficult to imagine any future good faith use of the disputed domain name by the Respondent.
The Respondent did not file any response to contest the above. Therefore, the Examiner finds that the third element for the Complainant to obtain the suspension of a domain name under URS 1.2.6.3 has been proven.
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 name be SUSPENDED for the duration of the registration.
<deezer.shop>
Flip Jan Claude Petillion, Examiner
Dated: October 14, 2020
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