Westmore · UDRP DecisionBlefasol.xyz
The Panel ordered transfer of <blefasol.xyz>. It found the domain confusingly similar to the Complainant’s BLEPHASOL trademark because replacing “ph” with “f” was a minor, hardly noticeable misspelling and a classic example of typosquatting. The Complainant established an unrebutted prima facie case that the Respondent lacked rights or legitimate interests. Bad faith registration and use were found based on the earlier trademark rights, the intentional typographical misspelling, the Panel’s conclusion that the Respondent knew of the mark and intended to create confusion for commercial gain, and the principle that an inactive domain can still constitute bad-faith use.
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The decision illustrates a straightforward typosquatting and passive-holding fact pattern. A phonetic spelling change—substituting “f” for “ph”—was sufficient for confusing similarity and supported the Panel’s inference of awareness because the resulting domain closely tracked the earlier BLEPHASOL mark. The case also confirms that an inactive website does not, by itself, prevent a bad-faith-use finding when the surrounding circumstances support 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 Laboratoires Thea v. see PrivacyGuardian.org / Vlad Ivleev Case No. D2020-3413 1. The Parties The Complainant is Laboratoires Thea, France, represented by Harlay Avocats, France. The Respondent is PrivacyGuardian.org, United States of America (“United States”) / Vlad Ivleev, Russian Federation. 2. The Domain Name and Registrar The disputed domain name <blefasol.xyz> (the “Disputed 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 December 15, 2020. On December 15, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On December 15, 2020, 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 December 16, 2020, 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 December 17, 2020. 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 December 18, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 7, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 8, 2021. The Center appointed Pablo A. Palazzi as the sole panelist in this matter on January 14, 2021. 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 the development and manufacture of ophthalmological products, both preventive and curative, in the areas of diagnosis, surgery and therapeutics. The Complainant distributes its products worldwide in more than 70 countries through subsidiaries, licensees and distributors The Complainant owns, among others the following trademark registration for the term “Blephasol” the European Union Trade Mark (EUTM) Registration BLEPHASOL No.011412301, registered on May 8, 2013. The Complainant uses the trademark in connection with a micellar lotion which is commercialized worldwide. The Respondent registered the Disputed Domain Name <blefasol.xyz> on July 27, 2020. The Disputed Domain Name does not resolve to an active webpage. 5. Parties’ Contentions A. Complainant The Complainant contentions can be summarized as follows: Identical or confusingly similar The Complainant states that the Disputed Domain Name is almost identical to BLEPHASOL trademark, since it only differs by their middle letter “f” vs “ph”, which are phonetically identical. Consequently, there is a real risk of confusion for the public, which can believe that the signs at issue are connected or belong to the same entity. Rights or legitimate interests The Complainant alleges that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. This is demonstrated by the fact that there is no evidence of the Respondent’s use of, or demonstrable preparations to use Disputed Domain Name in connection with a bona fide offering of goods or services. Moreover, the Respondent is not commonly known by the Disputed Domain Name and has not acquired any trademark rights for the term “blefasol”. Finally, the Complainant alleges that the Respondent is not making a legitimate non-commercial or fair use of the Disputed Domain Name, since the Respondent is not using the Disputed Domain Name. Registration and use in bad faith The Complainant contends that the Respondent registered the Disputed Domain Name in bad faith. The Complainant owns the trademark BLEPHASOL prior to the registration of the Disputed Domain Name. The Complainant further alleges that the Respondent had the obligation to conduct a prior search in order to avoid the registration of a trademark-abusive domain name, especially where the domain name consists in an invented word and not in a generic or descriptive term. In addition, any prior rights search undertaken by the Respondent with good faith efforts would have revealed the existence of the Complainant’s products. In addition, the Complainant contends that its trademark is well known throughout the world and as the trademark BLEPHASOL consists in a distinctive invented word, it is highly implausible that the Respondent could have arrived independently at or chosen just by chance the Disputed Domain Name. Finally, the Respondent is using the Disputed Domain Name <blefasol.xyz> in bad faith, as it is not used by the Respondent in connection with a bona fide offering of goods or services since it does not host any website. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists the three elements which the Complainant must satisfy with respect to the Disputed Domain Name: “(i) the domain name is identical or confusingly similar to a trademark or service mark in the which the complainant has rights; (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 Based on the evidence submitted, the Panel finds that the Disputed Domain Name <blefasol.xyz> is confusingly similar to the Complainant’s trademark BLEPHASOL. The replacement of the letters “ph” for the letter “f” represents a misspelling that does not prevent a finding of confusing similarity between the Disputed Domain Name and the Complainant’s trademark. Moreover, the misspelling is also hardly noticeable and results in a very minor modification of the Complainant’s trademark. This is classic example of typosquatting. As section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states: “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element. (…) Examples of such typos include (i) adjacent keyboard letters, (ii) substitution of similar-appearing characters ( e.g. , upper vs lower-case letters or numbers used to look like letters), (iii) the use of different letters that appear similar in different fonts, (iv) the use of non-Latin internationalized or accented characters, (v) the inversion of letters and numbers, or (vi) the addition or interspersion of other terms or numbers.” Furthermore, as stated in section 1.11.1 of the WIPO Overview 3.0 , the generic Top-Level-Domain (“gTLD”) “.xyz” is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. Therefore, the Panel concludes that the Complainant has satisfied the first requirement of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the Disputed Domain Name: “(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or (iii) you are making a 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 at issue.” There is no evidence of the existence of any of those rights or legitimate interests. The Complainant has not authorized, licensed, or permitted the Respondent to register or use the Disputed Domain Name or to use the trademark in the Disputed Domain Name. The Complainant has prior rights in the trademark, which predate the Respondent’s registration of the Disputed Domain Name. In addition, the Respondent is not known by the Disputed Domain Name. The Complainant has established a prima facie case unrebutted by the Respondent. The Respondent has failed to show that it has acquired any rights with respect to the Disputed Domain Name. Moreover, it had the opportunity to demonstrate its rights or legitimate interests, but it did not reply to the Complainant’s contentions. As such, the Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith. The Disputed Domain Name was registered on July 27, 2020, while the Complainant’s trademark BLEPHASOL was registered on May 8, 2013. The Panel is of the view that the Respondent registered the Disputed Domain Name in bad faith since it is a typographical misspelling of and is confusingly similar to the Complainant’s BLEPHASOL trademark. Therefore, the Panel concludes that the Respondent was aware of the Complainant’s rights when it registered the Disputed Domain Name. The circumstances in the case before this Panel indicate that the Respondent was aware of the Complainant’s trademark when registering the Disputed Domain Name and it has intentionally created a likelihood of confusion with the Complainant’s BLEPHASOL trademark in order to attract Internet users for its own commercial gain. The Disputed Domain Name does not resolve to an active webpage. As it has been the case in previous UDRP panel decisions, the fact that the Disputed Domain Name is inactive does not prevent a finding of bad faith use (see section 3.3 of the WIPO Overview 3.0 ). Therefore, taking all circumstances into account and for all above reasons, this Panel concludes that the Respondent has registered and using the Disputed Domain Name 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 Disputed Domain Name <blefasol.xyz> be transferred to the Complainant. Pablo A. Palazzi Sole Panelist Date: January 25, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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