The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).
The Complainant's submissions are unclear and have caused the Panel some difficulty in the assessment of this third aspect of the UDRP.
The Complainant's key argument appears to be that the Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct', as set out in paragraph 4(b)(ii) of the Policy. However, the Complainant has completely failed to provide any evidence of a 'pattern of such conduct'. The Complainant does attempt to rely upon the decision of the WIPO AMC in Case D2010-1118 La Touraine v Above.com Domain Privacy / Transure Enterprise. This is presented as an authority in respect of typosquatting. However, the discussion of typosquatting in the said case is primilarly relevant in respect of the second test (rights or legitimate interests), and the Respondent was also characterised, regarding the third test, as engaged in a pattern of behaviour. Secondly, the Complainant cites another decision of the WIPO AMC, Case D2000-0937 AltaVista v Saeid Yomtobian, as authority for the point that a misspelling alone can be the basis of a finding of bad faith. However, the case in question also makes specific reference, in its discussion of misspellings, to commercial gain.
The Panel therefore expressly rejects the Complainant's submission that the Respondent has 'registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct', on the basis that neither the Complaint nor the Panel's assessment of the case contains evidence of a pattern of such conduct.
The Panel however finds that this case is one of 'passive holding', and so the test for bad faith could be satisfied on this basis. In cases of this type, a Panel cannot realistically identify a situation where use would be in good faith (see WIPO Jurisprudential Overview 3.0, para 3.2 including its summary of the 'Telstra' line of cases (WIPO AMC Case D2000-0003 Telstra Corporation Limited v Nuclear Marshmallows). The Panel notes that mention is made of the Telstra decision in the latter part of the Complainant's submissions and that the Complainant provided a copy of the said decision as an Annex. It is therefore appropriate for the Panel to give full consideration to this line of argument.
On the one hand, one of the factors in the Telstra test is that the Complainant's mark 'has a strong reputation and is widely known'. This is not wholly obvious in the present case, given the 2017 launch of the ecommerce service, which the Panel notes through its own research saw some publicity albeit after the registration of the disputed domain name by the Respondent (e.g. Grace Cook, ‘LVMH opens its first multi-brand internet store’ (Financial Times, 6 June 2017)). Indeed, the Annex supplied by the Complainant regarding press coverage contains articles that similarly postdate the registration of the disputed domain name or are (unhelpfully) undated. It does appear to be the case that earlier marks were registered and to some extent used, although the evidence provided by the Complainant is far from extensive or clear. The Panel does however note that the Complainant did establish rights in a number of jurisdictions prior to the registration of the disputed domain name, and that the Complainant declares that a website has been operated by a company under the same ownership since 2013. The Panel also notes the provision of an Annex containing various promotional offers (with unclear dates and origins) over a four year period using the text in question. While the Panel would obviously have preferred that this information be set out in a clearer and more thoroughly evidenced fashion by the Complainant, it can accept the Complainant's statements in this regard (which can to some extent be verified by reference to search results and the Internet Archive and the making of reasonable assumptions as to relevant dates).
On the other hand, it is absolutely the case that the Respondent has 'provided no evidence whatsoever of any actual or contemplated good faith use by it' of the disputed domain name. This finding is made on the basis of the lack of participation of the Respondent, but also the Panel's inability to identify any evidence from the web content at the disputed domain name or any other materials available to it.
It is not clear whether the Respondent has attempted to conceal its true identity, or provided false or misleading contact details. The CAC has noted that neither the written notice of the Complaint nor the advice of delivery thereof was returned to it, and so it is unaware whether the written notice was received by the Respondent or not. It is however noted that the Complainant declares that it has not received any response to its two attempts to communicate with the Respondent through the details included in WHOIS records; such failure has been taken into account in other 'Telstra' cases, e.g. WIPO AMC Case D2012-0419 Regeneron Pharmaceuticals, Inc. v. Whois Privacy Protection Service, Inc., in the assessment of bad faith.
Taking all of the above observations into account, the Panel finds, on a Telstra basis rather than on foot of paragraph 4(b)(ii), that the disputed domain name has been registered and is being used in bad faith.
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