Boucheron Holding SAS v. lai yu lin et al.
Claim Number: FA1606001680964
Complainant: Boucheron Holding SAS of Paris, France.
Complainant Representative: INSIDERS of Paris, France.
Respondent: lai yu lin of nan chong yi long, China.
lai yu lin of nan chong yi long, SC, International, CN.
laiyulin of nan chong, Illinois, China.
REGISTRIES and REGISTRARS
Registries: XYZ.COM LLC
Registrars: Chengdu West Dimension Digital Technology Co., Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
Jonathan Agmon, as Examiner.
Complainant submitted: June 24, 2016
Commencement: June 24, 2016
Response Date: June 27, 2016
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules") .
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Complainant, Boucheron Holding SAS, is a French company in the business of development, manufacturing and marketing of jewelries, bridal, watches, and fragrances. The Complainant has been using the BOUCHERON mark worldwide, including in China where the Respondent is based. The Complainant promotes its products under the BOUCHERON mark on the website <boucheron.com> and sells them in physical boutiques in several countries, including China.
Complainant is the owner of the mark – BOUCHERON, worldwide for many years, including International. Reg. No. 924846 – BOUCHERON (word mark) with the registration date of December 13, 2006.
According to the Complainant, the disputed domain name <boucheron.xyz> is confusingly similar to the registered trademark since it contains the Complainant's BOUCHERON trademark in its entirety and with the additional gTLD ".xyz".
Complainant asserts the following regarding the Respondent:
1. The registered domain name(s) is/are identical or confusingly similar to a word or mark [URS/.usRS 1.2.6.1]: for which the Complainant holds a valid national or regional registration and that is in current use.
2. Registrant has no legitimate right or interest to the domain name [URS 1.2.6.2] 3. The domain name(s) was/were registered and are being used in bad faith [URS 1.2.6.3] such as: The domain name(s) was/were registered or are being used in bad faith [.usRS 1.2.6.3] such as:
The Registrant argued he is operating under the disputed domain name a website displaying pictures of luxury cars, plants and it is most likely to be a blog website.
The Respondent argued that he registered the disputed domain name with innocent motive, after doing promotion at <West.cn> he chose the disputed domain name for no specific reason, and without knowing it is related to the Complainant.
The Respondent further asserts that he bought the disputed domain name to develop a blog, and did not intent to attract people for a certain benefit.
The Respondent further asserts that he did not buy the disputed domain name to establish any of the Complainant's website and that he is not intending to sell the disputed domain name.
Determined: Identical and/or Confusingly Similar - Finding for Complainant
URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar to a word mark: (i) for which the Complainant holds a valid national or regional registration and that is in current use; or (ii) that has been validated through court proceedings; or (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.
Complainant is the owner of the mark – BOUCHERON, worldwide for many years, including International. Reg. No. 924846 – BOUCHERON (word mark) with the registration date of December 13, 2006.
The domain name includes the Complainant's mark in its entirety, together with the gTLD ".xyz".
Therefore, the Panel finds that the <boucheron.xyz> domain name is confusingly similar to the BOUCHERON mark pursuant to URS Procedure 1.2.6.1.
Determined: Registrant has no legitimate right or interest to the domain name - Finding for Complainant
URS 1.2.6.2 requires the Complainant to show the Registrant has no legitimate interest or right in the disputed domain name.
The Complainant has shown it is the owner of the Trademark BOUCHERON. The Complainant has also provided evidence to show it has a legitimate right and interest to the disputed domain name. The Complainant has not given any permission to the Respondent to use the BOUCHERON trademark.
The Complainant also argued that the Respondent has no legitimate right or interest to the disputed domain name. The Complainant made a prima facie case and therefore the burden shift to the Registrant to show he has a legitimate interest or right in the disputed domain name.
The Respondent did not submit any evidence showing he is known as BOUCHERON. Respondent has stated that there is no reason why he chose the name of the disputed domain name. The Respondent did not use the disputed domain name at the time the complaint was filed.
The Panel was not persuaded by the arguments made by the Respondent and finds that the Respondent failed to show that it has rights or legitimate interest in the disputed domain name.
Complainant has met its burden.
[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.
Determined: The domain name(s) was/were not registered and is being used in bad faith - Finding for Registrant
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith. a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.
The Complainant failed to meet the necessary burden under URS 1.2.6.3.
The Complainant alleges that the disputed domain name “was acquired in bad faith on the following grounds: since its purchase in May 2016 nothing has appeared on the website under this domain name. This effectively and deliberately creates confusion with the Complainant’s trademark and diverts traffic from the official boucheron.com websites. The Respondent has therefore
put himself in a perfect position to exploit Boucheron’s popularity and renown for his own gain.” The Complainant evidence is an inactive web page under the disputed domain name.
The Complainant’s only argument and evidence of bad faith registration is therefore the inactive web site under the disputed domain name. In fact, the Complainant did not allege bad faith use at all. This is sufficient to deny the complaint.
Moreover, URDP/URS panels have found repeatedly that the “apparent lack of so-called active use (e.g., to resolve to a website) of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith.” See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; See also Boucheron Holding SAS v. zhouhaotian et al., NAF Claim Number: FA1605001676556.
While Examiners have accepted various types of evidence showing cumulative bad faith indications with evidence of lack of use, leading to a finding of bad faith registration and use, the burden lies with the Complainant to provide such clear and convincing evidence to show such indications and to argue the same. In this instant case, the Complainant failed to meet this burden.
The Complainant failed to show URS 1.2.6.3. Finding for the Respondent.
The Examiner finds that the Complaint was neither abusive nor contained material falsehoods.
After reviewing the Complainant’s submissions and their entirety, the Examiner determines that the Complainant has failed to demonstrate all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain names be RETURNED to the control of the Registrant.
Jonathan Agmon, Examiner
Dated: June 31, 2016
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