WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Apagor Distribution S.A.S. v. Richard J.
Case No.�D2006-1567
1. The Parties
The Complainant is Apagor Distribution S.A.S., Courtaboeuf, France, represented by Mr.�Olivier�Meyer, Avocat au Barreau de Paris, Paris, France.
The Respondent is Richard J., California, United�States�of�America.
2. The Domain Name and Registrar
The disputed domain name is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on December�9,�2006 by email, a hard copy of which was received by the Center on December�18,�2006. On December�12,�2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On that same date, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on December�20,�2006. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the�“Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December�21,�2006. In accordance with the Rules, paragraph�5(a), the due date for Response was January�10,�2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January�11,�2007.
The Center appointed Christophe Imhoos as the sole panelist in this matter on January�19,�2007. 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.
4. Factual Background
The Complainant is the owner of the French trademark CLASS’CROUTE N� 95 568 532 registered on April�21,�1995, renewed on April�27,�2005 for a period of 10 years until April 21, 2015 in class 30, 35, 39, 42, 43 (Annexes 3 and 4 to the Complaint).
It appears from a web consultation that the Complainant is the owner of the website , specialized in the home delivery of sandwiches, salads, desserts and tray meals.
The disputed domain name was registered on December 2, 2004.
5. Parties’ Contentions
A. Complainant
The Complainant’s main arguments are the following.
(i) The domain name is confusingly similar to a trademark or service mark in which the Complainant has rights, the only difference between the trademark and the domain name being the apostrophe between “class” and “croute” which has been replaced by the letter “e”.
(ii) The Respondent has no rights or legitimate interests in respect of the domain name.
There is no evidence of the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name at stake in connection with a bona fide offering of goods or services; likewise, the Complainant submits that there is no evidence that the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights.
Lastly, the Respondent is not making a legitimate non-commercial or fair use of the domain name as it obviously intents to misleadingly divert consumers for commercial gain. As a matter of fact, the domain name leads to a list of companies, including restaurants and fast food which are direct competitors of the Complainant.
(iii) The domain name was registered and is being used in bad faith.
By using the domain name , the Respondent intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s website 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 the Respondent’s website or location or of a product or service on the Respondent’s website or location.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph�4(a) of the Policy sets forth three requirements, which have to be met for the Administrative Panel to order the transfer of the disputed domain name to the Complainant. Those requirements are that:
(i) the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the Respondent’s domain name has been registered and is being used in bad faith.
The Complainant must prove in the administrative proceeding that each of the aforesaid three elements is present so as to warrant relief, according to paragraph�4(a) of the Policy.
The Panel has to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable, pursuant to paragraph�15(a) of said Rules.
In accordance with paragraph�14(b) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint.
A. Identical or Confusingly Similar
The Complainant has established its rights in the trademark CLASS’CROUTE (Annexes 3 and 4 to the Complaint).
The Complainant’s trademark CLASS’CROUTE is obviously confusingly similar to the domain name . The mere replacement of the apostrophe by an “e” does not affect that finding insofar as the domain name in question can be considered as containing a minor misspelling of Complainant’s trademark. The letters inversion/suppression/additions in the disputed domain names do not eliminate any risk of confusion with the Complainant’s trademark.
The Respondent’s conduct can be considered as typosquatting: “taking advantage of common misspelling made by Internet users who are looking for a particular provider of goods or services, in order to obtain some benefit therefrom” (Expedia, Inc. v. Alvaro Collazo, WIPO Case No.�D2003-0716; InfoSpace, Inc. v. Double Down Magazine, WIPO Case No.�D2000-1474). The risk of confusion is still reinforced by the hyperlinks forwarding to websites operating in the scope of fast food an restaurant related services to which the disputed domain name is pointing (see also Soci�t� Air France v. Bing G Glu, WIPO Case No.�D2006-0834).
For the above reasons, the Panel finds that the disputed domain is confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
Paragraph�4(c) of the Policy provides a non-exclusive list of circumstances, if found by the Panel to be proved based on its evaluation of all evidence submitted, shall demonstrate rights to or legitimate interests in the domain name in dispute. Those circumstances are described as follows:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph�4(c) of the Policy, any rights to and/or legitimate interests in the domain name in dispute. This entitles the Panel to draw any such inferences from such default as it considers appropriate pursuant to paragraph�14 (b) of the Rules (see e.g. Talk City, Inc. v. Michael Robertson, WIPO Case No.�D2000-0009 or Isabelle Adjani .v. Second Orbit Communications, Inc., WIPO Case No.�D2000-0867). The Complainant should nevertheless make out a prima facie case that the Respondent lacks rights or legitimate interests (see Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No.�D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No.�D2004-0110).
The Complainant does not seem to have granted any license or to have otherwise permitted the Respondent to use the Complainant’s trademark or to apply for any domain name incorporating the Complainant’s trademark. Moreover, the Respondent is not known by the domain name at stake.
Under these circumstances and absent evidence to the contrary, the Panel is unable to find any evidence that would tend to establish that the Respondent has rights or legitimate interests in respect of the disputed domain name.
Furthermore, as pointed out by the Complainant in its Complaint, the hyperlinks forwarding to websites operating in the scope of fast food an restaurant related services, in direct competition to those of the Complainant, and to which the disputed domain name is pointing is not a bona fide offering of goods or services under paragraph�4(c)(i) of the Policy or a non-commercial or fair use under paragraph�4(c)(iii) of the Policy (Soci�t� Air France v. Bing G Glu, WIPO Case No.�D2006-0834).
For the above reasons, the Panel finds that the Respondent does not have rights or legitimate interest with respect to the domain names.
C. Registered and Used in Bad Faith
Paragraph�4(b) of the Policy provides a non-exclusive list of circumstances that evidence registration and use of a domain name in bad faith. Any one of the following behaviors is sufficient to support a finding of bad faith:
(i) circumstances indicating that you have registered or you have 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 the Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 your website or location or of a product or service on your website or location.
As already mentioned, the Respondent did not file any response to the Complaint, failing thereby to invoke any circumstance which could demonstrate his good faith in the registration or use of the domain name in issue.
Nevertheless, the Panel still has the responsibility of determining which of the Complainant’s assertions are established as facts, and whether the conclusions asserted by the Complainant can be drawn from the established facts (see Harvey Norman Retailing Pty Ltd v. Oxford-University, WIPO Case No.�D2000-0944).
The Complainant has relied on paragraph�4(b)(iv) of the Policy to characterize the Respondent’s conduct, without further explanations.
Actual evidence, i.e. the contents of the website of the disputed domain name, shows that the Respondent is offering the same kind of services of those of the Complainant under the circumstances described above, creating thereby a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website and services.
Such conduct, in the Panel’s view, has to be considered, prima facie, as bad faith registration and use pursuant to paragraph�4(b)(iv) of the Policy.
Finally, bad faith is further suggested by the fact the Respondent has concealed its true identity as domain name holder (see Annex 1 to the Complaint), strongly indicating a bad faith intention (See e.g. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No.�D2000-0003; see also Flowil International Lighting (Holding) B.V., SLI Sylvania Europe v. Sylvania Lighting International, WIPO Case No.�D2006-0687), pursuant to the general meaning of paragraph�4(b) of the Policy.
7. Decision
For all the foregoing reasons, in accordance with paragraphs�4(i) of the Policy and 15�of the Rules, the Panel orders that the domain name be transferred to the Complainant.
Christophe Imhoos
Sole Panelist
Dated: February�2,�2007
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