BAZARCHIC SA v Theodora Djotohou, Bazar Chiconeline

WIPO Case No. D2023-1731

ARBITRATION
AND
MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

BAZARCHIC SA v. Theodora DJOTOHOU, BAZAR CHICONELINE

Case No. D2023-1731

1. The Parties

The Complainant is BAZARCHIC SA, France, represented by Clairmont Novus Avocats, France.

The Respondent is Theodora DJOTOHOU, BAZAR CHICONELINE, France.

2. The Domain Name and Registrar

The disputed domain name <bazarchicc.com> is registered with Tucows Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 19, 2023. On April 20, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 20, 2023, 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 April 25, 2023, 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 April 25, 2023.

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 May 2, 2023. In accordance with the Rules, paragraph 5, the due date for Response was May 22, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 15, 2023.

The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on June 30, 2023. 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.

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4. Factual Background

The Complainant Bazarchic, a company incorporated in 2006, in France, specializes in the e-commerce of end-of-series fashion items, womenswear, menswear, jewelry, decoration, accessories, gastronomy, and wines, which are offered for sale at prices between 40% and 70% below those of physical shop prices.

The Complainant is the registered owner of several trademark registrations for BAZARCHIC, including French trademark number 3408882, registered on February 8, 2006; International trademark number 1042811, registered on February 4, 2010; International trademark number 1332397, registered on

September 27, 2016, and European Union Trade Mark number 015857113, registered on April 4, 2017,
(together referred to as: the “Mark”).

The Complainant owns and operates the <bazarchic.com> domain name, created on November 16, 2005, through which it sells products online, notably to customers in France, Belgium, and Luxembourg.

The Respondent appears to be located in France.

The disputed domain name was registered on February 8, 2023, and resolved to an unfinished website offering competing products for sale.

5. Parties’ Contentions

A. Complainant

(i) The Complainant submits that the disputed domain name reproduces the Mark, in which the Complainant has rights, and is confusingly similar to the Mark insofar as the disputed domain name contains the Mark in its entirety. The Complainant also asserts that the doubling of the final letter “c” does not serve to distinguish

the disputed domain name from the Mark.

(ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the
disputed domain name. Furthermore, the Complainant contends that it never licensed the Respondent to
use the Mark in any manner, or consented to such use. The Complainant also asserts that the Respondent

never had any business connection or affiliation with the Complainant.

(iii) The Complainant submits that the Respondent has registered and is using the disputed domain name in
bad faith. The Complainant alleges that the Respondent opportunistically chose to register the disputed

domain name for commercial gain, by typosquatting and passing off as the Complainant.

(iv) The Complainant requests that the disputed domain name be transferred to the Complainant.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

6.1. Procedural Aspects

As aforementioned, no Response was received from the Respondent.

Under the Rules, paragraphs 5(f) and 14(a), the effect of a default by the Respondent is that, in the absence of exceptional circumstances, the Panel shall proceed to a decision on the basis of the Complaint.

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Under paragraph 4(a) of the Policy, it is the Complainant’s burden to establish that all three of the required criteria for a transfer of the disputed domain name have been met, even in the event of a default.

Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences from the
Respondent’s default as it considers appropriate under the circumstances.

In this case, the Panel finds that as a result of the default, the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant. In particular, by defaulting and failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy or otherwise, from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.

Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent has acted in bad faith.

6.2. Requirements of paragraph 4(a) of the Policy

A. Identical or Confusingly Similar

In comparing the Mark with the disputed domain name, it is evident that the latter consists solely of the Mark, followed by another final letter “c”, and by the generic Top-Level Domain (“gTLD”) “.com”.

The doubling of the final letter does not prevent a finding of confusing similarity between a domain name and a trademark, where the trademark remains recognizable. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8. Here, the Mark is clearly recognizable in the disputed domain name.

It is also well established that a gTLD, including, as is the case here, the gTLD “.com”, does not generally affect the assessment of a domain name for the purpose of determining identity or confusing similarity.

The Panel finds that the disputed domain name is confusingly similar to the Mark, which it incorporates entirely.

Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that with regard to paragraph 4(a)(ii) of the Policy this could result in the often impossible task of proving a negative proposition, requiring information that is primarily if not exclusively within the knowledge of a respondent.

Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden of
production of evidence to the respondent to come forward with evidence of rights or legitimate interests in a
domain name, once the complainant has made a prima facie showing, as the Panel believes the
Complainant has made in this case. See Document Technologies, Inc. v. International Electronic
Communications Inc., WIPO Case No. D2000-0270.

As previously noted, the Respondent offered no reason for selecting the disputed domain name. There is no evidence that the Respondent is commonly known by the disputed domain name or makes a legitimate noncommercial or fair use of the disputed domain name.

No information is provided on what rights or legitimate interests the Respondent may have in the disputed domain name, which resolves to a website containing none of the mandatory information. In addition, the

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Panel notes that the Respondent failed to respond to the formal cease and desist notice send on February
13, 2023, by the Complainant’s lawyer.

To counter any notion that the Respondent has such rights or legitimate interests, the Complainant has argued that the Respondent (i) has no business connection or affiliation with the Complainant, and (ii) received no license or consent from the Complainant to register or use the disputed domain name.

Moreover, the Panel finds the composition of the disputed domain name, incorporating the Mark in its entirety with an additional final letter “c”, carries a risk of implied affiliation as it effectively impersonates the Complainant, or suggests sponsorship or endorsement by the Complainant. See WIPO Overview 3.0, section 2.5.1.

In the circumstances, the Panel concludes that the Complainant has established the requirement of paragraph 4(a)(ii) of the Policy with respect to the disputed domain name.

C. Registered and Used in Bad Faith

As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering the disputed domain name confusingly similar to the Mark and to its registered domain name.

It is established in prior UDRP decisions that where the respondent knew or should have known of a trademark prior to registering the disputed domain name, such conduct may, in certain circumstances, support a finding of bad faith. See WIPO Overview 3.0, section 3.2.2.

In this case, given the Respondent’s actual use of the disputed domain name, the Panel finds that it is inconceivable that the Respondent chose to register the disputed domain name randomly with no knowledge of the Mark. See WIPO Overview 3.0, section 3.1.1.

Moreover, this use clearly indicates that the Respondent registered the disputed domain name primarily for taking unfair advantage of the Mark and constitutes evidence of opportunistic registration and use of the disputed domain name in bad faith, within the meaning of paragraph 4(b)(i) of the Policy.

In addition, the Panel notes that many UDRP panels have held that bad faith use of a domain name by a
respondent may also result from the fact its good faith use is in no way plausible (see Audi AG v. Hans Wolf,

WIPO Case No. D2001-0148), considering the specificity of the activity.

In this case, the Panel cannot find any any actual or contemplated good faith use of the disputed domain
name, as its use invariably results in taking unfair advantage of the Complainant’s rights. See Telstra
Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

Finally, some UDRP panels have held that in certain circumstances, registrants of domain names would have a duty to abstain from registering and using a domain name which is either identical or confusingly similar to a prior trademark held by others and which would infringe upon or otherwise violate the rights of a

third party. See Policy, paragraph 2(b); Nike, Inc. v. B. B. de Boer, WIPO Case No. D2000-1397; Nuplex
Industries Limited v. Nuplex, WIPO Case No. D2007-0078; Mobile Communication Service Inc. v. WebReg,
RN, WIPO Case No. D2005-1304; BOUYGUES v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325;
Media General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964; and mVisible
Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141.

The Panel concludes in the light of all these circumstances that the Respondent’s registration and use of the disputed domain name constitutes bad faith, and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case.

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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, <bazarchicc.com>, be transferred to the Complainant.

/Louis-Bernard Buchman/
Louis-Bernard Buchman
Sole Panelist
Date: July 3, 2023