Westmore · UDRP DecisionNouveaumuseefragonard.com
The Panel ordered transfer of <nouveaumuseefragonard.com>. It found the domain confusingly similar to the Complainant’s FRAGONARD and MUSEE FRAGONARD marks, found no rights or legitimate interests after the Respondent failed to rebut the Complainant’s prima facie case, and found bad-faith registration and use based on the Respondent’s awareness of the well-known mark and museums, the domain’s composition, and its use for a parking page containing commercial PPC links.
The timeline behind nouveaumuseefragonard.com
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The case illustrates how a domain combining a trademark with wording tied to the complainant’s real-world activities can strengthen findings beyond basic confusing similarity. Here, “musee” corresponded to the Complainant’s museums and supported the Panel’s conclusion that the Respondent knew of and targeted the Complainant. The PPC parking use then supplied evidence of commercial exploitation of that confusion under paragraph 4(b)(iv).
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 Les Parfumeries Fragonard v. Yasutaka Sakatani Case No. D2021-0792 1. The Parties The Complainant is Les Parfumeries Fragonard, France, represented by Inlex IP Expertise, France. The Respondent is Yasutaka Sakatani, Japan. 2. The Domain Name and Registrar The disputed domain name <nouveaumuseefragonard.com> is registered with DropCatch.com LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 17, 2021. On March 17, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 18, 2021, 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 March 19, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 8, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 9, 2021. The Center appointed Nayiri Boghossian as the sole panelist in this matter on April 16, 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 owns a number of trademark registrations for the trademark FRAGONARD as well as MUSEE FRAGONARD related to its activity in the field of cosmetics, and in particular for perfume products. The Complainant also operates a number of museums. The Complainant owns French Trademark Registration No. 1327342 for the trademark FRAGONARD registered on October 18, 1985, as well as European Union Trade Mark Registration No. 12235941 registered on March 12, 2014 and International Trademark Registration No. 312110, registered on April 15, 1966. The Complainant owns French Registration No. TM FR 3682722 for the trademark MUSEE FRAGONARD, registered on October 12, 2009. The Respondent registered the disputed domain name on February 22, 2021. The disputed domain name resolves to a parking webpage that contains pay-per-click (“PPC”) links and some of them are related to the Complainant’s business. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s trademark FRAGONARD. The disputed domain name reproduces the trademarks FRAGONARD and MUSEE FRAGONARD. The terms “nouveau” and “musee” do not prevent a finding of confusing similarity. In fact, they would create an impression that the disputed domain name is linked to a new museum operated by the Complainant. The generic Top-Level Domain (“gTLD”) “.com” should generally be ignored when assessing confusing similarity as established by prior UDRP decisions. The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent registered the disputed domain after the Complainant had registered its trademark and domain names. The Respondent is not affiliated with nor authorized by the Complainant to use its trademark. The disputed domain leads to a parking page. The Complainant contends that the disputed domain name was registered and is being used in bad faith. The Complainant’s trademark FRAGONARD is a well-known trademark. Products of the Complainant have been sold all over the world and a lot of advertising has gone into the promotion of the Complainant’s products. It is also established by prior UDRP decisions that the trademark FRAGONARD is a well-known trademark. The Respondent is attempting to attract Internet users to its website for commercial gain and by creating confusion with the Complainant and its trademark. Also, an email server has been activated which may be a further sign of bad faith conduct. Lastly, the Respondent has provided false information when registering the disputed domain name and he has engaged in a pattern of registering infringing domain names. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant owns trademark registrations for the trademark FRAGONARD and MUSEE FRAGONARD. The Panel is satisfied that the Complainant has established its ownership of the trademark FRAGONARD and MUSEE FRAGONARD. The disputed domain name comprises the Complainant’s trademarks FRAGONARD and MUSEE FRAGONARD in their entirety. The words “nouveau” and “musee” which precede the trademark do not alter the fact that the disputed domain name is confusingly similar to the Complainant’s trademark. The word “musee” creates confusion with the Complainant as the latter operates a number of museums. As a result, the nature of such additional words supports the Panel’s findings under the third element that they reinforce an impression of the disputed domain name being connected with the Complainant and its trademark. The generic Top-Level Domain (“gTLD”) “.com” should generally be ignored when assessing confusing similarity as established by prior UDRP decisions. Consequently, the Panel finds that the disputed domain name is confusingly similar to the trademark of the Complainant and that the Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has made a prima facie showing that the Respondent does not have any rights or legitimate interests in the disputed domain name, particularly by asserting that it never authorized the Respondent to use its trademark as part of the disputed domain name. The burden of production moves then to the Respondent, and the Respondent has not provided evidence of circumstances of the types specified in paragraph 4(c) of the Policy, or of any other circumstances, giving rise to rights or legitimate interests in the disputed domain name. Consequently, the Panel finds that the Complainant has met the requirement under the Policy of showing that the Respondent does not have any rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Complainant’s trademark is a well-known trademark as established by prior UDRP decisions. It had been registered for more than 50 years by the time the disputed domain name was registered. Additionally, the use of the word “musee” only confirms the Respondent’s knowledge of the Complainant and its museums. Therefore, the Respondent must have been fully aware of the Complainant and its trademark when it registered the disputed domain name. The disputed domain name resolves to a parking webpage that contains PPC links to third-party websites. Resolving to a webpage that offers PPC links aiming at attracting Internet users for commercial gain is bad faith use in the circumstance of this case. Lastly, the Respondent used a privacy service, which is a further indication of bad faith. Such conduct falls squarely within the meaning of paragraph 4(b)(iv) of the Policy, and accordingly, the Panel finds that the Complainant has satisfied 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 <nouveaumuseefragonard.com> be transferred to the Complainant. Nayiri Boghossian Sole Panelist Date: April 17, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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