Westmore · UDRP DecisionLifebyprimonial.com
The Panel ordered transfer of <lifebyprimonial.com>. It found the domain confusingly similar to the Complainant’s LIFE BY PRIMONIAL figurative trademark, found no evidence of Respondent rights or legitimate interests, and concluded that the Respondent registered and used the domain in bad faith to profit from or otherwise exploit the Complainant’s trademark. The domain resolved to a marketplace page offering it for USD 980, the Respondent did not answer a cease-and-desist letter, used a privacy service, and filed no Response.
The timeline behind lifebyprimonial.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 lifebyprimonial.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates a cumulative-circumstances approach to a domain listed for resale. The Panel expressly declined to treat profitable resale as inherently abusive, but found targeting from the exact trademark correspondence, the sale listing, the absence of any demonstrated legitimate basis, the unanswered cease-and-desist letter, and privacy-shield use. The chronology is also notable because the LIFE BY PRIMONIAL application preceded the domain registration, while the resulting registration issued during the proceeding; separate PRIMONIAL rights dated from 2009.
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 Primonial v. Domain Administrator, PrivacyGuardian.org / Parla Turkmenoglu Case No. D2019-0193 1. The Parties The Complainant is Primonial of Paris, France represented by Novagraaf France, France. The Respondent is Domain Administrator, PrivacyGuardian.org of Phoenix, Arizona, United States of America (“United States of America”) / Parla Turkmenoglu of Cankaya, Ankara,Turkey. 2. The Domain Name and Registrar The disputed domain name <lifebyprimonial.com> (the “Domain Name”) is registered with NameSilo, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 25, 2019. On January 25, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 25, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on January 30, 2019 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 amended Complaint on January 31, 2019. The Center verified that the Complaint together with the amended 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 February 4, 2019. In accordance with the Rules, paragraph 5, the due date for Response was February 24, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 25, 2019. The Center appointed Willem J. H. Leppink as the sole panelist in this matter on March 4, 2019. 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, which, according to its website, is involved in wealth and asset management. The Complainant owns several trademarks for LIFE BY PRIMONIAL, LIFE and PRIMONIAL, including the European Union trademark PRIMONIAL (word mark) number 006393649 registered on January 7, 2009, the French trademark LIFE BY PRIMONIAL (figurative mark) number 4495812, filed on October 30, 2018 and registered on February 22, 2019, the French trademark LIFE (figurative mark) number 4495777, filed on October 30, 2018 and registered on February 22, 2019 (the “Trademark”). The Complaint is the owner of the domain name <primonial.com>, which was registered on December 3, 2007. The Domain Name was registered on November 23, 2018. The Domain Name resolves to a website that appears to be a marketplace for the Domain Name, on which the Domain Name is offered for USD 980. 5. Parties’ Contentions A. Complainant The following is a summary of the Complainant’s contentions. The Domain Name contains the Trademark in its entirety and is therefore identical to the Trademark. Since the identity of the Respondent is redacted for privacy reasons, the Respondent is unknown to the Complainant. The Website is not related to any trademark or business or commercial name owned by the Respondent. The Respondent is not related to the Complainant and has no link with the Complainants activity. The Respondent is not authorized by the Complainant. The Respondent should be considered as having no rights or legitimate interest in respect of the Domain Name. The Domain Name has been created and is currently used by the Respondent in bad faith. The Domain Name is offered by the Respondent for the price of USD 980, while the fees of the Registrar to register a .com domain name are USD 6.99. The high price of the Domain Name indicates that the Domain Name has been registered to extract money from the Complainant. The Complainant tried to contact the Respondent by sending a cease and desist letter via email. The Respondent never replied to this letter. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements: (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 must demonstrate that it has rights in a trademark or service mark and, if so, the domain name must be shown to be identical or confusingly similar to that mark. The Complainant has shown that it has rights in the Trademark, in particular the French trademark registration LIFE BY PRIMONIAL (figurative mark) number 4495812 of which the word elements are prominent. The Panel finds that the Domain Name is confusingly similar to at least the latter trademark registration as the Domain Name incorporates this registration in its entirety. Thus, the Panel finds that the Domain Name is confusingly similar to this trademark registration. In addition, with regard to the suffixe “.com” (which indicates that the Domain Names are registered in the “.com” generic Top-Level Domain “gTLD”), as it was established in many previous UDRP decisions (see A.P. Møller v. Web Society , WIPO Case No. D2000-0135 ; Rollerblade, Inc. v. Chris McCrady , WIPO Case No. D2000-0429 ; Arab Bank for Investment And Foreign Trade (ARBIFT) v. Mr. Kenn Wagenheim / 07@usa.net , WIPO Case No. D2000-1400 ; Delikomat Betriebsverpflegung Gesellschaft m.b.H. v. Alexander Lehner , WIPO Case No. D2001-1447 ; and Crédit Industriel et Commercial SA v. Name Privacy , WIPO Case No. D2005-0457 ), it does not generally affect the analysis under the first element of the Policy for the purpose of determining whether a domain name is identical or confusingly similar; indeed, the suffix is a necessary component of the domain name and does not give any distinctiveness. For all the foregoing reasons, the Panel is satisfied that the first element of the Policy is met. B. Rights or Legitimate Interests The Respondent did not provide a Response to the Complainant’s contentions. For that reason, the Panel has carefully considered the factual allegations that have been made by the Complainant and are supported by the submitted evidence. In particular, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might have concluded that the Respondent has rights or legitimate interests in the Domain Name, such as: (i) use or preparation to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services prior to notice of the dispute; or (ii) being commonly known by the Domain Name (as an individual, business or other organization) even if the Respondent has not acquired any trademark or service mark rights; or (iii) making legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. There is no evidence in the case file that the Respondent has any rights or legitimate interests in the Domain Name. The Respondent does not seem to be affiliated with the Complainant in any way. There is no evidence that “lifebyprimonial” is the Respondent’s name or that the Respondent is commonly known as “lifebyprimonial”. There is also no evidence that the Respondent is, or has ever been, a licensee of the Complainant or that the Respondent has ever asked, or has ever been permitted in any way by the Complainant to register or use the Complainant’s Trademark, or to apply for or use any domain name incorporating the Trademark. Furthermore, the use of the Domain Name cannot be considered a bona fide offering of goods or services. In particular, the Respondent did not demonstrate any use or demonstrable preparation to use the Domain Name in connection with a bona fide offering of goods or services. It is also clear that the Respondent is not making any legitimate noncommercial or fair use of the Domain Name. Finally, given the circumstances of this case, the Panel finds that the Respondent’s lack of rights or legitimate interests in the Domain Names may also be inferred by the fact that no response was filed by the Respondent. According to earlier UDRP panels, “non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights” (see GA Modefine S.A. and Giorgio Armani S.p.A. v. Yoon-Min Yang , WIPO Case No. D2005-0090 ; and Pomellato S.p.A. v. Richard Tonetti , WIPO Case No. D2000-0493 ). Therefore, based on the evidence, the Panel is satisfied that the second element of the Policy is met. C. Registered and Used in Bad Faith In the Panel’s view there is no other plausible explanation why the Respondent registered the Domain Name, other than the Respondent being aware of the Complainant and the Trademarks and to make profit by offering the Domain Name for sale. In general, and in accordance with WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the practice of registering a domain name for subsequent resale (including for a profit) would not by itself support a claim that the respondent registered the domain name in bad faith with the primary purpose of selling it to inter alia the trademark owner. However, based on the facts of the matter, several circumstances indicate that the Respondent’s intent in registering the Domain Name was in fact to profit in some fashion from or otherwise exploit the Trademark. One of these circumstances is the fact that the Respondent did not reply to the cease and desist letter sent by the Respondent. Although the lack of a substantive reply by the Respondent as such cannot by itself lead to the conclusion that there is use in bad faith, the cumulative circumstances as outlined in the decision are sufficient for the Panel to find that the use of the Domain Name by the Respondent is in bad faith. In addition, and in accordance with WIPO Overview 3.0 , in the Panel’s view it contributes to a finding of bad faith that the Respondent uses a privacy shield to hide its identity. In light of the above circumstances, the Panel is satisfied that the third element of the Policy is met and 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 <lifebyprimonial.com> be transferred to the Complainant. Willem J. H. Leppink Sole Panelist Date: March 18, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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