Decision for dispute CAC-UDRP-105955

1) The Panel is of the opinion that the disputed domain name is confusingly similar to the Complainant's earlier trademark SAFORELLE. As a matter of fact, this trademark is entirely reproduced in the disputed domain name. Concerning the addition of the term ESSENTIAL, the addition of this generic term, clearly associated to the Complainant's business (developing of products including essences and essential oils), enhances the confusing similarity (see Intesa Sanpaolo SPA v. Milen Radumilo, CAC Case No. 103027 related to the domain name <intesasanpalo-convalida.com> and ARCELORMITTAL v. Private Private, CAC Case No. 105049 related to the domain <arcelormittal-burns.com>). Finally, in accordance with the consensus view of past UDRP panels, the Panel finds that the Top-Level domain (".COM" in this case) is not sufficient to exclude the likelihood of confusion since it is a mere technical requirement included in all domain names. The Complainant therefore succeeds on the first element of the Policy. 

2) The Complainant has long standing rights in the mark SAFORELLE. The Complainant provided prima facie evidence that the Respondent does not have rights or legitimate interests in respect of the disputed domain name as it is not commonly known under the disputed domain name and as the Respondent was never authorized to use the domain name by the Complainant. The Respondent, in the absence of any response, has not shown any facts or element to justify prior rights or legitimate interests in the disputed domain name. The Complainant has not licensed or otherwise permitted the Respondent to use the Complainant's marks in the disputed domain name. On the basis of the evidence submitted, and in the absence of a response, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant therefore succeeds on the second element of the Policy.

3) According to the Panel, it is apparent that the Respondent registered the disputed domain name the same day as the Complainant applied for its EUTM SAFORELLE ESSENTIAL. The trademark SAFORELLE ESSENTIAL is obviously highly distinctive and the SAFORELLE mark is very well reputed.  Therefore, in the Panel's view, it cannot be a mere coincidence that the Respondent chose to register the identical disputed domain name on the same day of the Complainant's EUTM filing.  Accordingly, the Panel finds that it was more likely than not that the Respondent was well aware of the Complainant group and its business and SAFORELLE mark when it registered the disputed domain name and that he did so opportunistically. The disputed domain name has not been used by the Respondent but rather resolves to a parking page on which it is simply advertised as being for sale for US$ 2.588. The advertised price is well beyond the basic administrative cost involved in applying for the disputed domain name and it is apparent that the Respondent registered the disputed domain name in order to make a profit from its re-sale. These facts, including the Respondent’s opportunistic registration of the disputed domain name <saforelleessential.com> the same day as the Complainant filed for its highly distinctive trade mark SAFORELLE ESSENTIAL, the well-reputed nature of the SAFORELLE mark and the parking of the disputed domain name on a parking page with an advertisement for sale of the same disputed domain name <saforelleessential.com> at many times the administrative cost of its acquisition are circumstances together highly supportive of an inference of the Respondent’s use of the disputed domain name in bad faith.  Under paragraph 4(b)(i) of the Policy, circumstances indicating that a respondent has registered a domain name primarily for the purpose of selling, renting, or otherwise transferring it 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 the respondent’s documented out-of-pocket costs directly related to the domain name are evidence of registration and use of a domain name in bad faith. In this case the disputed domain is identical to the Complainant’s highly distinctive trade mark and in circumstances that it was registered the same day as application was made for the trade mark, there is a very strong inference that the Respondent was seeking to profit one way or another from the disputed domain name by re-selling it to the Complainant or to a competitor (see Editions Dalloz v. yahya zumrut, CAC Case No. 103392, LyondellBasell Industries Holdings B.V. v. Ge Rong Kai, CAC Case No. 105595, REGIE AUTONOME DES TRANSPORTS PARISIENS v. faruk sayan, CAC Case No. 103440).  Accordingly, the Panel finds that the disputed domain name was both registered and used in bad faith and the Complaint also succeeds on the third element of the Policy.