Westmore · UDRP DecisionMyphamvichy.com
The Panel ordered transfer of <myphamvichy.com> to L’Oréal. It found the domain confusingly similar to the VICHY mark because it combined the mark with the Vietnamese term “mypham,” meaning “cosmetics.” The Respondent did not rebut the Complainant’s prima facie case on rights or legitimate interests. Given the mark-plus-cosmetics composition, the prior cosmetics-shop use, and the later redirection to a YouTube toys page, the Panel found registration and use in bad faith.
The timeline behind myphamvichy.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 myphamvichy.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates the heightened significance of a domain that combines a trademark with a local-language term describing the trademark owner’s goods. Here, the Vietnamese word for cosmetics did not distinguish the domain from VICHY; it strengthened the apparent connection. Historical use for an online cosmetics shop, followed by unrelated redirection, and the absence of a substantive response supported findings on legitimate interests and bad faith.
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 L’Oréal v. Toan Nguyen Case No. D2016-1740 1. The Parties The Complainant is L’Oréal of Paris, France, represented by Dreyfus & associés, France. The Respondent is Toan Nguyen of Ha Noi, Viet Nam. 2. The Domain Name and Registrar The disputed domain name <myphamvichy.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 August 25, 2016. On August 25, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 25, 2016, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 9, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 29, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 30, 2016. On October 1, 2016, the Respondent sent an email to the Center asserting that “after October, that domain is released. I will not renew that domain”. The proceeding was suspended on October 5, 2016 to allow the Parties to settle the dispute. On October 27, 2016, the proceeding was reinstituted. The Center appointed Ian Lowe as the sole panelist in this matter on November 9, 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 industrial group specialized in the field of cosmetics and beauty. It was founded in 1909 and is today one of the world’s largest groups in the cosmetic business, present in over 140 countries with over 82,900 employees. The Complainant creates and distributes products in all sectors of the beauty industry, such as hair colour, styling aids, cosmetics and fragrances. Vichy is one of the Complainant’s consumer product brands and is a leader in cosmetic skincare, available at 90,000 points of sale in more than 60 countries. The Complainant is the proprietor of many trademark registrations in respect of VICHY, including France trademark VICHY number 95565058 registered on March 27, 1995 and International trademark VICHY and device number 469251 registered on May 27, 1982 designating many territories including Viet Nam. The Complainant also operates several websites using domain names comprising “vichy” including <vichy.com> registered on September 12, 1998, and <vichy.com.vn> which comprises the Viet Nam country‑code Top-Level Domain, registered on February 8, 2005. The Domain Name was registered on October 22, 2013. In 2013/2014, according to the Internet Archive at “web.archive.org”, the Domain Name resolved to an online cosmetics shop. It presently resolves to a YouTube page relating to toys. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its VICHY trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. B. Respondent The Respondent did not reply to the Complainant’s contentions, save for the short email to the Center referred to above in which it stated that “after October, that domain is released. I will not renew that domain”: 6. Discussion and Findings According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has uncontested rights in the trademark VICHY, both by virtue of its many trademark registrations around the world and as a result of its widespread goodwill and reputation acquired through use of the VICHY mark over many years. Ignoring the generic Top-Level Domain (“gTLD”) “.com”, the Domain Name comprises the Complainant’s mark together with the word “mypharm” which means “cosmetic” in the Vietnamese language. In the Panel’s view, the additional word does not detract from the distinctiveness of the VICHY mark, but rather increases the confusing similarity because of the Complainant’s use of the mark for its cosmetics products. Accordingly, the Panel finds that the Domain Name is confusingly similar to the trademark in which the Complainant has rights. B. Rights or Legitimate Interests The Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in respect of the Domain Name. In its email to the Center, the Respondent simply indicated that it did not intend to renew the Domain Name. There is some suggestion that the Respondent previously used the Domain Name, comprising the Complainant’s well-known mark, for an online cosmetics shopping website, but it now resolves to a YouTube page featuring toys. The Respondent has failed to counter the prima facie case established by the Complainant. In the circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name. C. Registered and Used in Bad Faith Since the Domain Name comprises the Complainant’s mark, VICHY, together with the word “mypham” meaning “cosmetics”, the Panel is in no doubt that the Respondent must have had the Complainant and its rights in the VICHY mark in mind when it registered the Domain Name. Through the combination of the VICHY mark and “mypham”, the Respondent must have intended to disrupt the business of the Complainant through Vietnamese speakers being confused into believing that the Domain Name was connected with the Complainant. The Panel further considers that there is a legitimate presumption that the Respondent is either deriving some commercial gain from the redirection to the YouTube page or that it had such commercial gain in mind. In either event, the Panel considers that this amounts to bad faith registration and use for the purposes of paragraph 4(a) of the Policy. The Panel accordingly finds that the Domain Name was registered and is being used 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 <myphamvichy.com> be transferred to the Complainant. Ian Lowe Sole Panelist Date: November 23, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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