Westmore · UDRP DecisionBalmain.online
The Panel ordered transfer of <balmain.online> after finding it identical to Complainant’s registered BALMAIN trademark, that Respondent lacked rights or legitimate interests, and that the domain was registered and used in bad faith. The findings relied principally on the domain’s PPC use, its prior EUR 4,250 sale listing, Respondent’s EUR 1,500 settlement proposal, and Respondent’s apparent registrations relating to other well-known brands.
The timeline behind balmain.online
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
This decision illustrates how an exact-match trademark domain, combined with PPC monetization and repeated efforts to obtain payment for transfer, can supply mutually reinforcing evidence across the second and third UDRP elements. The absence of a formal Response left Complainant’s prima facie case unrebutted, while Respondent’s settlement proposal did not cure the evidentiary deficiency and was instead treated as additional bad-faith evidence.
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 Pierre Balmain S.A.S. v. Mark Dijksman, Dijksman Holding Case No. D2018-0933 1. The Parties Complainant is Pierre Balmain S.A.S. of Paris, France, represented by CSC Digital Brand Services AB, Sweden. Respondent is Mark Dijksman, Dijksman Holding of The Hague, Netherlands. 2. The Domain Name and Registrar The disputed domain name <balmain.online> 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 April 26, 2018. On April 27, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 30, 2018, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on May 3, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 23, 2018. On May 22, 2018, May 23, 2018 and June 3, 2018, the Center received several email communications from Respondent, who did not submit a formal response. Accordingly, on May 31, 2018, the Center notified the Parties of the commencement of the panel appointment process. The Center appointed Stephanie G. Hartung as the sole panelist in this matter on June 6, 2018. 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 Complainant is a company organized under the laws of France that is active in the fashion industry with locations worldwide. Complainant has provided evidence that it is the registered owner of numerous trademarks relating to the designation “Balmain” including, inter alia , the following with protection in the European Union: - Word-/device mark BALMAIN, European Union Intellectual Property Office (“EUIPO”), Registration No. 001262039, Registration Date: October 9, 2000, Status: Active; - Word-/device mark BALMAIN, EUIPO, Registration No. 001266915, Registration Date: August 8, 2000, Status: Active; - Word-/device mark BALMAIN, EUIPO, Registration No. 006566764, Registration Date: October 31, 2008, Status: Active. Complainant also owns the domain name <balmain.com> which redirects to Complainant’s primary website at “www.balmain.com” where Complainant promotes its fashion business and products. Respondent, a resident of the Netherlands, registered the disputed domain name on August 31, 2015. As of the time of the rendering of this decision, the disputed domain name resolves to a typical pay-per-click (PPC) website at “www.domainsitter.online”. Complainant has documented that at some point before the filing of this Complaint, the disputed domain name redirected to a website of the domain trading platform sedo.com where it was offered for a sales price of EUR 4,250. Complainant requests that the disputed domain name be transferred to Complainant. 5. Parties’ Contentions A. Complainant Complainant contends that it was founded in 1945 by and named after the famous French fashion designer Pierre Balmain. Nowadays, Complainant has a global presence with 35 points of sale within France and store locations in over 40 countries worldwide. In 2015, Complainant’s website at “www.balmain.com” received an average of more than 36,000 visitors per month; in February 2016, Complainant reported over 3 million total followers on Instagram and over 529,000 Page Likes on Facebook. Complainant submits that the disputed domain name is identical to Complainant’s BALMAIN trademark as it consists solely thereof, with the generic Top-Level Domain (“gTLD”) “.online” to be disregarded. Moreover, Complainant asserts that Respondent has no rights or legitimate interests in respect of the disputed domain name since (1) Complainant never gave Respondent permission to use its BALMAIN trademarks in any manner, including in domain names, (2) Respondent is not commonly known by the disputed domain name, (3) Respondent receives PPC fees from the linked websites that are listed at the disputed domain name’s website, (4) the disputed domain name is being offered for sale in an amount that far exceeds Respondent’s out-of-pocket expenses, and (5) Respondent registered the disputed domain name significantly after Complainant acquired rights in the BALMAIN trademark. Finally, Complainant argues that Respondent registered and is using the disputed domain name in bad faith since (1) the BALMAIN trademark is internationally known with trademark registrations across numerous jurisdictions, (2) by creating a domain name that is identical with Complainant’s BALMAIN trademark, Respondent has demonstrated knowledge of and familiarity with Complainant’s brand and business, (3) Respondent is using the disputed domain name to confuse unsuspecting Internet users looking for Complainant’s services and to mislead those Internet users as to the source of the disputed domain name and website, (4) Respondent currently holds registrations for several other domain names including well-known brands such as Givenchy, Ralph Lauren and Skerchers, thus Respondent is engaging in a pattern of cybersquatting/typosquatting business and, finally, (5) Respondent is offering the disputed domain name for sale for a valuable consideration in excess of its out-of-pocket expenses. B. Respondent Respondent did not formally reply to Complainant’s contentions, however, sent emails to the Center on May 22, 2018, May 23, 2018 as well as on June 3, 2018, offering to settle this dispute against payment of EUR 1,500. Complainant did not reply to this offer. 6. Discussion and Findings Under paragraph 4(a) of the Policy, Complainant carries the burden of proving: (i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) That Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) That the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel concludes that the disputed domain name <balmain.online> is identical to the BALMAIN trademark in which Complainant has rights. The disputed domain name incorporates the BALMAIN trademark in its entirety. Numerous UDRP panels have recognized that incorporating a trademark in its entirety can be sufficient to establish that the disputed domain name is at least confusingly similar to a registered trademark (see e.g. , PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS) , WIPO Case No. D2003-0696 ). Moreover, it has been held in many UDRP decisions and has become a consensus view among panelists (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions , Third Edition (“WIPO Overview 3.0”), section 1.11 ) that the applicable gTLD in a domain name is generally viewed as a standard registration requirement and as such is disregarded under the first element confusingly similarity test, though the meaning of such gTLD may be relevant to a panel assessment of the second or third element of the URDP. Accordingly, the existence of the gTLD “.online” does not dispel the finding of identity arising from the incorporation of Complainant’s BALMAIN trademark in the disputed domain name. Therefore, Complainant has established the first element under the Policy set forth by paragraph 4(a)(i). B. Rights or Legitimate Interests The Panel is further convinced on the basis of Complainant’s undisputed contentions that Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor can it be found that Respondent has made a legitimate noncommercial or fair use thereof without intent for commercial gain. Respondent has not been authorized to use Complainant’s BALMAIN trademark, either as a domain name or in any other way. Also, there is no reason to believe that Respondent’s name somehow corresponds with the disputed domain name and Respondent does not appear to have any trademark rights associated with the term “Balmain”. Moreover, the disputed domain name as of the time of the rendering of this decision resolves to a typical PPC website showing a variety of hyperlinks to websites relating to the subject of domain names in general, including “domain name sale”. Complainant has provided evidence that at some point before the filing of this Complaint, the disputed domain name redirected to a website by the domain name trading platform sedo.com where it was offered for sale at a price of EUR 4,250. Accordingly, the Panel concludes that Respondent apparently has neither used the disputed domain name in connection with a bona fide offering of goods or services, nor in a legitimate noncommercial or fair manner, but rather to sell the disputed domain name for a sales price that obviously by far exceeds Respondent’s out-of-pocket costs connect to the disputed domain name’s registration. Accordingly, Complainant has established a prima facie case that Respondent has no rights or legitimate interests in respect of the disputed domain name. Now, the burden of production shifts to Respondent to come forward with appropriate allegations or evidence demonstrating to the contrary (see WIPO Overview 3.0, section 2.1 ). Respondent has not filed a formal Response, however has contacted the Center by emails of May 22, 2018, May 23, 2018 as well as June 3, 2018, according to which it offered to settle the dispute against payment of an amount of EUR 1,500. In fact, such communication lacks any justification or explanation as to why Respondent needed to rely on Complainant’s BALMAIN trademark to create the disputed domain name independent from the reputation of this trademark and, therefore, conferring any rights or legitimate interests in respect of the disputed domain name. Accordingly, there is no other way but to find that Respondent has not met that burden. Therefore, Complainant has also satisfied paragraph 4(a)(ii) and, thus, the second element of the Policy. C. Registered and Used in Bad Faith The Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith. The use of the disputed domain name, which is identical with Complainant’s BALMAIN trademark, to either resolve to a website where the disputed domain name is offered for sale or to redirect to a standardized PPC website in order to generate PPC commissions, is a clear indication that Respondent either registered the disputed domain name primarily for the purpose of selling it to Complainant at a price in excess of its documented out-of-pocket costs or that Respondent intentionally attempted to attract, for commercial gain, Internet users to an online location by creating a likelihood of confusing with Complainant’s BALMAIN trademark as to the source, sponsorship, affiliation or endorsement of such location. Such circumstances are evidence of registration and use of the disputed domain name in bad faith within the meaning of paragraphs 4(b)(i) as well as 4(b)(iv) of the Policy. In this context, the Panel has also noted that Respondent apparently holds registrations for several other domain names relating to well-known brands, such as Givenchy, Ralph Lauren and Skerchers, which at least indicates that Respondent is engaged in a pattern of domain name grabbing to again support the finding of a registration and use of the disputed domain name in bad faith. Such finding also is in line with the fact that Respondent in the course of this proceeding offered to transfer the disputed domain name to Complainant at a price of EUR 1,500 which is further evidence of bad faith registration and use within the meaning of paragraph 4(b) of the Policy. In this context, the Panel has also noted that Respondent apparently holds registrations for several other domain names relating to well-known brands, such as Givenchy, Ralph Lauren and Skerchers, which at least indicates that Respondent is engaged in a pattern of domain name grabbing which again supports the finding of a registration and use of the disputed domain name in bad faith. Therefore, the Panel finds that Complainant has also satisfied the third element under the Policy as set forth by paragraph 4(a)(iii). 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 <balmain.online> be transferred to Complainant. Stephanie G. Hartung Sole Panelist Date: June 15, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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