Westmore · UDRP DecisionLuxens.com
The Panel ordered transfer of <luxens.com>. It found the domain confusingly similar to the Complainant’s LUXENS mark because the second-level portion was identical to the mark. The Respondent had no rights or legitimate interests because there was no connection with the Complainant, no evidence of any circumstance under paragraph 4(c), and no Response. Bad faith was established from the GBP 10,000 public sale offer, which the Panel considered likely to exceed documented out-of-pocket costs, together with advertising links referencing third-party trademarks.
The timeline behind luxens.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
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This decision illustrates an exact-match trademark dispute in which a public, high-value domain sale offer and trademark-referencing advertising links were sufficient for the Panel to find bad faith under paragraph 4(b)(i). It also shows the practical importance of a response: with no contrary evidence, the Panel drew a negative inference and found no rights or legitimate interests.
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 Groupe ADEO v. Bong Keun Cha Case No. D2016-1096 1. The Parties The Complainant is Groupe ADEO of Ronchin, France, represented by Coblence & Associés, France. The Respondent is Bong Keun Cha of Busan, Republic of Korea. 2. The Domain Name and Registrar The disputed domain name <luxens.com> is registered with Go Australia Domains, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 1, 2016. On June 3, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent’s contact details. On June 6, 2016, the Center received from the Complainant an amendment to the Complaint. 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 7, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 27, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 28, 2016. The Center appointed Dr. Hong Xue as the sole panelist in this matter on July 13, 2016. 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 specializes in hardware retail and has registered the trademark LUXENS on September 21, 2006, in a number of countries through the International Trademark Registration system. One of the companies in the Complainant’s group, Leroy Merlin, has also registered the trademark LUXENS in France and the European Union. The disputed domain name <luxens.com> was created on March 17, 2012. According to the Registrar’s verification response, the disputed domain name was registered to the Respondent since at least April 28, 2015. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name <luxens.com> is confusingly similar to its registered trademark LUXENS. The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name <luxens.com>. The Complainant contends that the disputed domain name <luxens.com> was registered and is being used in bad faith. The Complainant requests that the disputed domain name <luxens.com> be transferred to it. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar Pursuant to the Policy, paragraph 4(a)(i), a complainant must prove that a disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. In line with such requirement, a complainant must prove its trademark or service mark right and the similarity between the disputed domain name and its trademark or service mark. The Panel notes that, before the registration of the disputed domain name, the mark LUXENS had been registered by the Complainant in a number of countries, including China, the Russian Federation and Ukraine, through the International Trademark Registration system. In addition, the Complainant’s company, Leroy Merlin, had registered the mark LUXENS in connection with its hardware retailing business in France and the European Union in 2006 and 2007, respectively The disputed domain name is <luxens.com>. Apart from the generic Top-Level Domain (“gTLD”) suffix “.com”, the disputed domain name consists of “luxens”, which is identical with the Complainant’s registered mark LUXENS. The Panel therefore finds the disputed domain name <luxens.com>, as a whole, is confusingly similar to the Complainant’s mark LUXENS. Accordingly, the Complainant has proven the element required by paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant asserts, and provides evidence to demonstrate, that the Respondent has no rights or legitimate interests in the disputed domain name and, as stated above, the Respondent did not provide any information to the Panel asserting any rights or legitimate interests it may have in the disputed domain name <luxens.com>. It is apparent from the Complaint that there is no connection between the Respondent and the Complainant or its business. Paragraph 4(c) of the Policy lists a number of circumstances which can be taken to demonstrate a respondent’s rights or legitimate interests in a domain name. However, there is no evidence before the Panel that any of the situations described in paragraph 4(c) of the Policy apply here. To the contrary, the lack of any Response leads the Panel to draw a negative inference. Therefore, and also in light of the Panel’s findings below, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name <luxens.com>. Accordingly, the Complainant has proven the element required by paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Complainant contends that the Respondent registered and is using the disputed domain name <luxens.com> in bad faith. The Respondent did not respond to these contentions. According to the evidence provided by the Complainant, the Panel finds, on the website to which the disputed domain name resolves, “www.luxens.com”, the Respondent states that “the owner of luxens.com is offering it for sale for an asking price of 10000 GBP.” On the site, there are also advertising links referencing others’ trademarks, like LAND ROVER. Although the Complainant contends that the Respondent has not yet put the disputed domain name in use, the Panel finds that the Respondent has used the disputed domain name <luxens.com> to offer for sale the disputed domain name at the price of GBP 10,000 and to host advertising links on the website established at the disputed domain name. According to the Policy, paragraph 4(b)(i), if the circumstances indicate that the respondent 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 the respondent’s documented out-of-pocket costs directly related to the domain name, it shall be the evidence of the registration and use of a domain name in bad faith. In the present case, the Respondent offers to sell the disputed domain name <luxens.com> at the price of GBP 10,000, which is likely in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name. Also, the Respondent’s offer for sale of the disputed domain name is open to all, including the Complainant that has the trademark right in LUXENS and the Complainant’s competitors. The Panel therefore finds that this is adequate to conclude that the Respondent has registered and is using the disputed domain name in bad faith under the Policy, paragraph 4(b) (i). The advertising links on the website at the disputed domain name are further evidence of bad faith. Therefore, the Complainant has successfully proven the element required by paragraph 4(a)(iii) of the Policy. 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 disputed domain name <luxens.com> be transferred to the Complainant. Dr. Hong Xue Sole Panelist Date: July 24, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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