Westmore · UDRP DecisionLexman.com
The Panel ordered transfer of <lexman.com> after finding all three UDRP elements satisfied. The domain reproduced the Complainant’s LEXMAN mark in its entirety. The Complainant established a prima facie absence of rights or legitimate interests, which the non-responding Respondent did not rebut. Bad faith was found from the prior trademark rights, the absence of any apparent meaning or legitimate basis for selecting “lexman,” use of a privacy service for concealment, failure to answer cease-and-desist notices, and use of the domain for a link page offering the domain for sale and attracting users for commercial gain.
The timeline behind lexman.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
The decision illustrates an exact-match trademark case in which several mutually reinforcing circumstances supported bad faith: prior trademark rights, an apparently non-dictionary term, no demonstrated Respondent connection to the name, privacy-service concealment, unanswered notices, commercial links, and an offer-to-sell notice. It also shows that a panel’s direct inspection of a domain can materially supplement or qualify a complainant’s description of the domain’s use.
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. Domain Hostmaster, Customer ID: 59459889818570 / 21562719 Ont Ltd Case No. D2016-1347 1. The Parties The Complainant is Groupe Adeo of Ronchin, France, represented by Coblence & Associés, France. The Respondent is Domain Hostmaster, Customer ID: 59459889818570 of Fortitude Valley, Australia / 21562719 Ont Ltd of Brampton, Canada. 2. The Domain Name and Registrar The disputed domain name <lexman.com> is registered with Fabulous.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 1, 2016. On July 1, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 4, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 5, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on the same date. The Center verified that the Complaint together with the amendment to 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 July 7, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 27, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 28, 2016. The Center appointed Nicolas Ulmer as the sole panelist in this matter on August 15, 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 is a French company specialized in hardware shops and home improvement material. The Complainant and its affiliates have created a range of products known as “LEXMAN” which range includes electric apparatus, plugs power switches and the like. According to the Complaint the Complainant’s group employs some 21,000 persons in 400 stores in more than a dozen countries over the world. The Complaint and its annexes reveal that the Complainant holds at least three trademarks (International, France and Brazil) in various classes for LEXMAN; a fourth, European Union trademark is held through Leroy Merlin, whom the Complaint describes as “the pioneer company in Groupe Adeo […] nowadays the leading major DIY retail outfit in home and lifestyle management.” All of the foregoing trademarks were registered between July 2005 and January 2006. The disputed domain name was registered on May 18, 2007. The disputed domain name resolves to a pay-per-click parking page where it is offered for sale. Little is known of the Respondent beyond the address of Domain Hostmaster in Australia and the contact details of the underlying registrant as provided by the Registrar. . 5. Parties’ Contentions A. Complainant The Complainant alleges: that the disputed domain name undoubtedly creates a likelihood of confusion with its business and trademarks; that it has no relationship with the Respondent or any knowledge or belief of any right or legitimate interest of the Respondent in the disputed domain name; and that the disputed domain name can only have been registered and is being used in bad faith, whether such use is passive or active. The Complainant sent formal notices, including cease and desist language, to the Registrar on February 23, 2016 and then, on May 27, 2016, to the privacy service covering the registrant of the disputed domain name. The Complainant received no substantive response and was unable to learn the identity of the underlying registrant of the disputed domain name. The Complainant requests that the disputed domain name 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 The disputed domain name <lexman.com> contains the entirety of the Complainant’s trademark identically reproduced; the generic Top-Level Domain suffix “.com” does not diminish this identity or confusingly similarity. The Complainant has accordingly met its burden under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests It is now well established that a complainant needs to establish at least a prima facie case that the respondent has no rights or legitimate interests in respect of the disputed domain name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd. , WIPO Case No. D2003-0455 . Once such a prima facie case is made, the burden shifts to the respondent to demonstrate that it has rights or legitimate interests in the disputed domain name. See also, Meizu Technology Co., Ltd. v. “osama bin laden” , WIPO Case No. DCO2014-0002 ; H & M Hennes & Mauritz AB v. Simon Maufe, Akinsaya Odunayo Emmanuel and Nelson Rivaldo , WIPO Case No. D2014-0225 . In the instant case the Complainant has clearly asserted that it has never authorized nor licensed the Respondent to use its trademarks in a domain name or otherwise, and that it has no knowledge or belief of any rights or legitimate interests of the Respondent in the disputed domain name. Furthermore, there is no evidence or indicia in the file of this case that would suggest that the Respondent is known by the disputed domain name or that any other circumstances of paragraph 4(c) of the Policy are present.. The Respondent having failed to answer the Complaint, the Complainant has accordingly met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith According to the Complainant’s uncontested evidence and assertions, the disputed domain name sets forth a widely-known and prior trademarked commercial name. As the Complainant points out the word “lexman” does not have any defined meaning in English or French, and there is no evidence or indicia that the Respondent has any rights in such name. It is therefore appropriate to conclude that it was registered in bad faith. The use of a privacy service to conceal the identity of the registrant, as was done here, is further evidence and indicia of bad faith registration and use. As to bad faith use the Complainant emphasizes that even though the disputed domain name does not resolve to a website or online presence – nine years after its registration – such passive holding here constitutes bad faith use under the precedent set by the Telstra case and its progeny. When, on August 23, 2016, the Panel visited the site to which the disputed domain name resolved he found a site offering many links to services, including what appear to be sexual link-up services. The disputed domain name was there indicated as follows: “This domain may be for sale. Click here to inquire.” There is thus also evidence of the Respondent using the disputed domain name to attract Internet users for commercial gain. The above factors, together with the Respondent’s use of a privacy service for concealment and failure to answer cease and desist letters, here demonstrate bad faith use of the disputed domain name with the result that the Complainant has met its burden under 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 <lexman.com> be transferred to the Complainant. Nicolas Ulmer Sole Panelist Date: August 29, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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