WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Jeunesse Global Holdings, LLC and Jeunesse Brasil Comercial Ltda v. Cleverson Santos Pires, Permuta Livre
Case No. D2019-2931
1. The Parties
The Complainants are Jeunesse Global Holdings, LLC, United States of America, and Jeunesse Brasil Comercial Ltda, Brazil (hereinafter referred to as the “Complainants” or “Jeunesse”), represented by Pinheiro Neto Advogados, Brazil.
The Respondent is Cleverson Santos Pires, Permuta Livre, Brazil.
2. The Domain Name and Registrar
The disputed domain name <naaraoficial.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 28, 2019. On November 29, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 2, 2019, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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 December 4, 2019. In accordance with the Rules, paragraph 5(a), the due date for Response was December 24, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 3, 2020.
The Center appointed Gabriel F. Leonardos, Rodrigo Azevedo and Luiz E. Montaury Pimenta as panelists in this matter on January 27, 2020. The Panel finds that it was properly constituted. Each member of 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.
On February 3, 2020, the Complainants filed a Supplemental Filing with new evidence of a complaint by a customer that tried to purchase a product through the website at the disputed domain name and got his credit card cloned. In view of the objective nature of the evidence in the Supplemental Filing that was not available at the time of the submission of the Complaint, and also to conduct the proceeding with due expedition, the Panel has taken it into account and will proceed to issue its Decision.
4. Factual Background
The Complainants are Jeunesse Global Holdings, LLC and Jeunesse Brasil Comercial Ltda. Jeunesse Global Holdings is a direct selling company that markets cosmetics and nutritional products in more than 140 countries worldwide. Jeunesse Brasil Comercial is a Brazilian company controlled by Jeunesse Global Holdings and sells, through independent resellers, Jeunesse’s products in Brazil.
The Complainants affirm that one of the products commercialized by them is “Naära”, a powdered drink that contains collagen and other vitamins. In the past, “Naära” was marketed by the company Monavie, LLC, which was later acquired by Jeunesse.
In order to protect its investments and rights in Brazil, Jeunesse Global Holdings owns two (2) composed trademark registrations before the Brazilian Patent and Trademark Office (INPI) for the sign NAÄRA in the International Class 3 (Reg. No. 908808976, filed on December 23, 2014, and registered on June 19, 2018) and International Class 5 (Reg. No. 915063727, filed on July 19, 2018, and registered on July 2, 2019), which guarantee its exclusive rights to use and to protect the referred term.
Jeunesse Global Holdings also owns trademark registrations for the sign NAÄRA in other jurisdictions, specially before the United States Patent and Trademark Office (Reg. No. 5530344, registered on July 31, 2018, and first use in commerce on January 11, 2018).
The disputed domain name was registered on April 17, 2018, and resolves to an active website apparently offering NAÄRA products for sale.
5. Parties’ Contentions
A. Complainant
The Complainants submit that the disputed domain name <naaraoficial.com> is confusingly similar to the trademark NAÄRA. The disputed domain name fully incorporates the Complainants’ trademark followed by the term “oficial”, which means “official” in Portuguese, implying that the website hosted by the disputed domain name would be an official distribution channel for NAÄRA products.
In this regard, the Complainants plead that the Respondent is not an official distributor or reseller of Jeunesse’s products, and the company does not know how and from which source the Respondent obtains the products offered in the website under the disputed domain name.
The Complainants also noticed that the website displayed through the disputed domain name is using not only Jeunesse’s trademarks, but also the Complainants’ copyrighted images and designs taken from Jeunesse’s official website, misleading customers to think that they are purchasing goods from Jeunesse directly or from an official independent distributor.
In this regard, on February 3, 2020, the Complainants filed a supplemental brief with new evidence that the Respondent’s website under the disputed domain name <naaraoficial.com> is effectively causing confusion and harming consumers. Jeunesse’s customers bought NAÄRA products in the website “www.naaraoficial.com” believing it was Jeunesse’s official website. In one case, the customer affirmed that its credit card was cloned while trying to purchase in the referred website. In the second case, the customer told the products were shipped with their safety seals broken and dirty.
The Complainants affirmed, in addition, that <naaraoficial.com> website contains a link for the website “www.agelless.com” that sells another Jeunesse’s product, named “Instantly Ageless”, which could show Respondent’s bad intention to associate – one more time - itself with Jeunesse’s trademarks, products and reputation.
Moreover, the Complainants claim that the Respondent knew of the Complainants’ rights before registering the disputed domain name, since (i) the Respondent is using Jeunesse’s trademark on its integrality, as well as NAÄRA images withdrawn from Jeunesse’s website and (ii) the Complainants had already sent cease and desist letters to the Respondent requesting the takedown of its website and cancellation of the disputed domain name. However, the Respondent never answered or took any action.
This means that the Respondent registered and is using the disputed domain name <naaraoficial.com> in bad faith, aiming to take unfair advantage of the Complainants’ trademark and good reputation, creating confusion with Jeunesse’s trademarks and products.
At last, Complainants demonstrated that the Respondent has not received any authorization or consent to use the Complainants’ trademarks, logos or copyrighted images of Jeunesse’s products in its websites, and that the disputed domain name was not registered with Jeunesse’s consent. In this regard, the Complainants also affirmed that Respondent is not an authorized Jeunesse independent reseller, meaning that the Respondent has no rights or legitimate interests in the disputed domain name.
In view of the above, the Complainants requested that the disputed domain name <naaraoficial.com> be transferred to the Complainant Jeunesse Global Holdings, LLC.
B. Respondent
The Respondent did not reply to the Complainants’ contentions.
6. Discussion and Findings
To succeed, the Complainants must demonstrate that all the elements listed in paragraph 4(a) of the Policy have been satisfied, as following:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The burden of proving these elements is on the Complainants.
A. Identical or Confusingly Similar
The Complainants have duly proven that the first element under paragraph 4(a) of the Policy is met by evidencing that Jeunesse owns several trademark registrations for NAÄRA in Brazil and in other jurisdictions, such as in the United States. In addition, it is certified that the trademark NAÄRA” is contained in its entirety in the disputed domain name <naaraoficial.com>, followed by the term “official”, which means “official” in Portuguese language. Section 1.8 of the WIPO Overview of WIPO Panel View on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) explains that “[w]here the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element”.
Thus, the Panel finds that the disputed domain name <naaraoficial.com> is confusingly similar to the Complainants’ trademark.
Therefore, the Panel considers the requirements of the first element of paragraph 4(a) of the Policy satisfied.
B. Rights or Legitimate Interests
The Respondent had twenty days to submit a response according to paragraph 5(a) of the Rules and failed to do so. Paragraph 5(f) of the Rules establishes that if a respondent does not respond to the complaint, the panel’s decision shall be based upon the complaint.
The consensus view of UDRP panels on the burden of proof under paragraph 4(a)(ii) of the Policy is summarized in section 2.1 of the WIPO Overview 3.0 as follows: “[W]here 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 disputed domain name was registered on April 17, 2018, that is, several years after the filing of the Complainant’s first trademark NAÄRA in Brazil, on December 23, 2014. The Panel further notes the composition of the disputed domain name and finds that it is not legitimate to use registered trademarks to compose domain names by adding the term “oficial” to the trademark, without the consent of the owner of the said trademark, since it may cause consumers’ confusion (see section 2.5.1 of the WIPO Overview 3.0).
The Panel holds that the Respondent must have been aware of the NAÄRA products at the time of registration, given that (i) the Complainants are widely known; (ii) the Respondent is using images withdrawn from Jeunesse’s website and (iii) the Complainants had already sent cease and desist letters to the Respondent concerning this matter.
The Panel finds that the Complainants have never entered into any agreement with the Respondent nor granted any authorization or license to the Respondent regarding the use of the Complainants’ trademark, nor is the Respondent affiliated with the Complainants’ activities.
Accordingly, the Complainants established a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name. Since the Respondent has not replied to Complainants’ contentions and, thus, has not presented any evidence or elements to justify any rights or legitimate interests in connection with the disputed domain name, the Panel has found no indication that any of the circumstances described in paragraph 4(c)(i)-(iii) of the Policy could apply to the present matter.
Therefore, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name (Policy, paragraph 4(a)(ii)).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists several circumstances that, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith. Those circumstances include: “(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
The Panel finds it is highly unlikely that the Respondent had no knowledge of the NAÄRA products at the time of registration of the disputed domain name. On the contrary, the evidence shows that the Respondent was likely deliberately trying to create confusion with the Complainants’ trademark.
The Panel acknowledges that Jeunesse Global Holdings and Jeunesse Brasil Comercial are widely known companies and believes the disputed domain name may cause confusion, since its feature, namely “naaraoficial”, reproduces not only the NAÄRA trademark, but is also followed by the word “oficial” indicating that the website is “official” by Jeunesse – which is not true.
Moreover, the Panel refers to the UDRP decision in Revlon Consumer Products Corporation and Revlon (Suisse) S.A. v. Xia Zhen Zhou, Zhou Xia Zhen,
WIPO Case No. D2017-0883 (<revlonforsale.com>), as can be verified below:
“Whether or not the products are counterfeit or genuine, the Panel notes that the website does not accurately disclose the Respondent’s lack of any relationship to the Complainant. Given that the disputed domain name is confusingly similar to the Complainant’s trademark, the Panel considers that the Respondent’s website is very likely to give Internet users the false impression that it is authorized by the Complainant. These facts show that the Respondent's use of the disputed domain name is not in connection with a bona fide offering of goods or services.”
The Complainants have also shown that the website “www.naaraoficial.com” is not only misleading consumers to think that it is Jeunesse’s official website, but the company‘s reputation is being harmed by the Respondent’s unlawful actions.
The Panel notes that the content found in the disputed domain name (NAÄRA products being sold) confirms that the Respondent registered the disputed domain name with the bad intention to wrongly attract the Jeunesse’s clients – which are led to think they are accessing Jeunesse’s original website - and pursue commercial gain based on the good reputation and fame of the NAÄRA products.
Considering that Jeunesse is one of the most well known direct selling company in the world, the Panel is of the opinion that such use of the disputed domain name is further evidence of bad faith.
Thus, the Panel concludes that the Respondent acts in bad faith for the following reasons:
(i) the widespread reputation of the NAÄRA products makes it highly unlikely that the Respondent had no prior knowledge of the NAÄRA products at the moment of the disputed domain name registration;
(ii) the Respondent has no rights or legitimate interests in the disputed domain name;
(iii) the Respondent’s disputed domain name fully reproduces the Complainants’ NAÄRA trademark; and
(iv) the disputed domain name misrepresents the Complainants and deceives their customers or potential customers by leading them to think that they are accessing Jeunesse’s official website, while instead they are buying products of a non-authorized Jeunesse independent reseller.
Lastly, the Panel notes that, in conjunction with all of the abovementioned, the fact that the Respondent did not present any response to the Complaint reinforces the conclusion that Respondent acted in bad faith.
Accordingly, the Panel concludes that the disputed domain name was registered and is being used in bad faith under paragraph 4(b)(iv) of the Policy.
As such, the Panel finds that the Complainants have satisfied paragraph 4(a)(iii) of the Policy.
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 <naaraoficial.com> be transferred to the Complainant Jeunesse Global Holdings, LLC.
Gabriel F. Leonardos
Presiding Panelist
Rodrigo Azevedo
Panelist
Luiz E. Montaury Pimenta
Panelist
Date: February 10, 2020
