REQUIREMENTS OF PARAGRAPH 4(A) OF THE POLICY
Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements to obtain the transfer or the revocation of the domain name:
(1) the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(3) the disputed domain name has been registered and is being used in bad faith.
1. THE COMPLAINANT’S RIGHTS AND CONFUSING SIMILARITY OF THE DISPUTED DOMAIN NAME TO
THE COMPLAINANT'S MARK
The Complainant has proved to hold rights in the L'Occitane Trademark. The disputed domain name incorporates the entirety of the Complainant mark and differs from it by merely omitting the apostrophe (which is not a valid character for the domain name registration), adding the generic and descriptive term "code" and the generic top-level domain name ".com".
In assessing identity or confusing similarity the UDRP panels agree that, in cases where the relevant trademark is recognizable within the disputed domain name, the deletion of punctuation (e.g. apostrophe or hyphen) or the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Case D2000-0321 chichis.com; NAF Case no. FA140598 daddysjunkymusic.com; paragraph 1.7 WIPO Overview 3.0).
It is also well-established UDRP case law that panels usually ignore the top-level domain for the purpose of determination of identity or confusing similarity between the disputed domain name and the Complainant’s trademark as it is a technical requirement of registration (see paragraph 1.11.1 WIPO Overview 3.0).
Hence, this Panel finds that the Complainant has proven the first element of the paragraph 4(a) of the Policy and the disputed domain name is confusingly similar to the Complainant's mark.
2. THE RESPONDENT’S LACK OF RIGHTS OR LEGITIMATE INTERESTS TO THE DISPUTED DOMAIN NAME
It is a consensus view of UDRP panels that the Complainant shall establish a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name to shift the burden of proof to the Respondent (see paragraph 2.1 of the WIPO Overview 3.0: "where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element").
The Respondent has never received any approval of the Complainant, expressed or implied, to use the Complainant's trademark or to register and use the disputed domain name, nor is affiliated to the Complainant in any form.
The disputed domain name was registered on 16 May 2019 by Swaqny, an Egyptian corporation. There is no evidence that the Respondent has been commonly known by the disputed domain name.
The disputed domain name redirects to a website in Arabic language displaying the device mark of the Complainant, images of the Complainant's products and discount codes or coupons to purchase such products, as well as links to the Complainant's official website. Such use of the domain name is clearly not a legitimate non-commercial or fair use, without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant’s mark.
While the Complainant has established its prima facie case, the Respondent has not submitted a Response to the Complaint and, thus, has failed to invoke any of the circumstances, which could demonstrate any rights or legitimate interests in the disputed domain name.
Therefore, the Panel is satisfied that the Complainant has met the second requirement of the paragraph 4(a) of the Policy and finds that the Respondent lacks rights or legitimate interests to the disputed domain name.
3. BAD FAITH REGISTRATION AND USE OF THE DISPUTED DOMAIN NAME
The Respondent registered the disputed domain name which is to be considered confusingly similar to Complainant's mark, since it wholly incorporates the L'Occitane Trademark. The mere deletion of the apostrophe (which is not a valid character for the domain name registration), addition of the generic and descriptive term “code” (which refers to discount code or coupon for purchase of products) and the gTLD “.com” (which is a technical requirement of the registration) are not sufficient elements to escape the finding of confusing similarity between the disputed domain name and the Complainant’s mark.
Given the distinctiveness and reputation of the Complainant's prior mark, it is inconceivable that the Respondent could have registered the disputed domain name for a mere chance without actual knowledge of the Complainant's rights in such well-known mark and the intention to exploit such reputation by diverting traffic away from the Complainant’s website.
The disputed domain name redirects to a website in Arabic language displaying the device mark of the Complainant, images of the Complainant's products and discount codes or coupons to purchase such products, as well as links to the Complainant's official website.
Hence, this Panel finds that, by registering and using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of its website or a product or service on its website (Paragraph 4(b)(iv) of the Policy).
The Respondent has not submitted a Response in this administrative proceeding providing any evidence of actual or contemplated good faith use.
Taken into account all circumstances of this case, the Panel finds that the Complainant has discharged the burden of proof to show that the disputed domain name has been registered and is being used in bad faith (paragraph 4(a)(iii) of the Policy).
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