Westmore · UDRP DecisionCultbeaute.com
The Panel ordered transfer of <cultbeaute.com>. It found the domain confusingly similar to the registered CULT BEAUTY mark because replacing the final “Y” with “E” did not materially change the mark’s visual, phonetic, or conceptual impression. The Respondent had no rights or legitimate interests because the domain was used for a parked website containing advertising links, including links to competing products, without any explanation of a legitimate purpose. Bad-faith registration and use were established from the Respondent’s awareness of the Complainant’s pre-existing rights, the misleading nature of plausible commercial uses, and the use of the domain to attract users to advertising links.
The timeline behind cultbeaute.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind cultbeaute.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how a one-letter substitution that preserves the visual, phonetic, and conceptual impression of a mark can satisfy confusing similarity. It also shows the significance of parking-page links to competing products: those links supported both the absence of legitimate interests and bad-faith use. Although default alone did not establish the claim, the absence of any explanation left the Complainant’s supported evidence uncontradicted.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Cult Beauty Limited v. Margaret Huerta Case No. D2015-1136 1. The Parties The Complainant is Cult Beauty Limited of Wells, Somerset, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”), represented by Dechert LLP, United Kingdom. The Respondent is Margaret Huerta of New York, New York, United States of America (“United States”). 2. The Domain Name and Registrar The disputed domain name <cultbeaute.com> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 2, 2015. On July 3, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 6, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 15, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 4, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 11, 2015. The Center appointed William P. Knight as the sole panelist in this matter on August 17, 2015. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background The Complainant is a British cosmetics company that sells a variety of cosmetics products via its website at “www.cultbeauty.co.uk”. The <cultbeauty.co.uk> domain name was registered on February 7, 2005. According to the Complaint, the Complainant was founded in 2008, boasts a significant online social media presence (with more than 23,000 followers on Twitter and more than 21,000 followers on Instagram) and has received a number of industry awards. The Complainant is the owner of registered trade marks for CULT BEAUTY, including United States registration numbers 4709986 (registration date March 31, 2015) and 4378248 (registration date August 6, 2013), and registrations in the United Kingdom, Europe, Australia and New Zealand. As at the date of this decision, the CULT BEAUTY trade mark is in use on the Complainant’s website at “www.cultbeauty.co.uk”. The Domain Name was registered on March 17, 2015 and is being used as a “parking website” which features Google Adwords advertisements, some of which redirect to suppliers of products competing with those of the Complainant. The Respondent is an individual and appears to be a resident of the United States. 5. Parties’ Contentions A. Complainant In accordance with paragraph 4(a) of the Policy, the Complainant asserts, inter alia , as follows: (i) that the Domain Name is confusingly similar to the Complainant’s name and registered trade marks; (ii) that the Respondent has neither conceivable rights nor any legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. In support of (i), the Complainant asserts that the Domain Name is comprised of two distinct words, being CULT and BEAUTE, rendering the Domain Name practically identical, both visually and phonetically, to its trade mark CULT BEAUTY. The Complainant asserts that the one letter difference between the Domain Name and its CULT BEAUTY trade mark is minor, is the result of deliberate typosquatting on the part of the Respondent and does not overcome the confusing similarity between the Domain Name and its trade mark. The Complainant asserts that the “.com” suffix in the Domain Name is irrelevant for the purposes of the comparison. In support of (ii), the Complainant states that its business was founded, and the CULT BEAUTY trade mark was first used, seven years before the Domain Name was registered by the Respondent. The Complainant submits that the Respondent chose the Domain Name deliberately due to its similarity with the Complainant’s trade mark. The Complainant contends that the advertisements currently displayed on the website at the Domain Name can be inferred to be providing commercial benefit to the Respondent, and that this does not in and of itself constitute a legitimate interest in the Domain Name. The Complainant contends that it has not licensed or otherwise permitted the Respondent to use its trade mark or the Domain Name. The Complainant argues that the Respondent’s name does not contain the Complainant’s trade mark and that she is not otherwise known by the CULT BEAUTY trade mark. In support of (iii), the Complainant contends that the Respondent is holding the Domain Name passively and has provided no evidence of actual or contemplated good faith use. The Complainant submits that its trade mark’s strong reputation, combined with the Respondent’s passive use of the Domain Name and failure to reply to the Complainant’s representatives’ correspondence are grounds for a finding of bad faith. Further, the Complainant notes that its CULT BEAUTY trade mark is registered in the United States, where the Respondent is a resident, and argues that the Domain Name is diluting the Complainant’s rights in its trade mark. The Complainant contends that the Respondent has registered the Domain Name for the purposes of on-selling its registration, as evidenced by the offer to sell the Domain Name on the website it currently resolves to. The Complainant submits, given its substantial reputation under the trade mark and the absence of any legitimate interest in the Domain Name on the part of the Respondent, that the Respondent knew or should have known of the Complainant’s rights in the trade mark and that therefore the Domain Name cannot have been registered in good faith. The Complainant submits that the Respondent registered the Domain Name in order to divert Internet traffic to the website at the Domain Name using the Complainant’s trade mark and profit from the advertising links on that website. The Complainant submits that the Respondent has no legitimate interest in the Domain Name and that the Domain Name has not been used for a legitimate purpose. The Complainant argues that the Respondent’s use of the Domain Name has diluted the Complainant’s reputation in its trade mark and that this is evidence of bad faith, B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The onus is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy. However, the Respondent has had ample opportunity to respond to the allegations of the Complainant and has not done so. The Respondent cannot be in a better position by failing to respond to explain the registration and use of the Domain Name. Paragraph 15(a) of the Rules instructs the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. In the absence of any response from the Respondent, the onus upon the Complainant will be satisfied if a conclusion which is capable of being drawn from the evidence provided by the Complainant is not contradicted by the Respondent. A. Identical or Confusingly Similar It is clear that the Complainant is the owner of the registered CULT BEAUTY trade mark. The mere replacement of one letter “Y” in the Complainant’s trade mark with another letter “E” will not be sufficient to distinguish the Domain Name if the dominant impression given by the Domain Name remains the Complainant’s trade mark. The one letter difference in the Domain Name does not sufficiently change its phonetic or visual effect, nor its meaning, such that it no longer gives the dominant impression of the Complainant’s CULT BEAUTY trade mark. The Panel finds that the Domain Name is confusingly similar to the Complainant’s trade mark CULT BEAUTY and, accordingly, paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests The Complainant has demonstrated that its name and mark is relatively well-known, particularly within its industry, including in the United States, in which country the Respondent is a resident. The Respondent was entitled, and had every opportunity, to demonstrate some right or legitimate interest with respect to the Domain Name, and paragraph 4(c) of the Policy gives good examples of how the Respondent could have done so. The Respondent has given no such explanation. No effort has been made by the Respondent to use the Domain Name for any purpose which might explain its choice. The Respondent’s use of the Domain Name is simply to attract those who might be interested in the Complainant and to direct them to other products and suppliers via Google Adwords advertisements, some of which directly compete with the products sold by the Complainant and all of which, it may be assumed, provide the Respondent with income. The Panel, therefore, agrees with the Complainant’s submission that the Respondent does not have any rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy directs that the Complainant must establish that the Domain Name has been registered and used in bad faith. So far as concerns the first limb of this requirement, registration in bad faith, since this is a case in which: (a) the Respondent registered the Domain Name in circumstances where it must have been aware of the pre-existing rights of the Complainant; and (b) there is virtually no commercial use which could be made of the Domain Name which would not infringe the legal rights of the Complainant and be misleading and deceptive upon the public; and (c) if the Respondent had any intention to make some legitimate use of the Domain Name, it has had ample opportunity either to do so or otherwise to explain its conduct, but has done neither; The Panel concludes that the Respondent registered the Domain Name in bad faith, in the sense required by the Policy. Turning now to the second limb of this requirement, “use in bad faith”: (a) the Complainant’s trade mark has a strong reputation and is relatively widely known, as evidenced by its registration as a trade mark and use in numerous countries; and (b) the Respondent has provided no evidence of any actual or contemplated good faith use by it of the Domain Name, and its present use is plainly intended to attract Internet users interested in the Complainant’s product to its parked website which features Google Adwords advertisements, including for products in competition with those offered by the Complainant; and (c) taking into account all of the above, it is not possible to conceive of any plausible actual or contemplated active use of the Domain Name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant’s rights under trade mark law. Accordingly, the Panel finds that the Respondent has used the Domain Name in bad faith. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <cultbeaute.com>, be transferred to the Complainant. William P. Knight Sole Panelist Date: August 28, 2015
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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