WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
MMA IARD v. Laurent GRANIER
Case No. D2008-1026
1. The Parties
Complainant is MMA IARD, Le Mans, France, represented by Deprez, Dian, Guignot Law firm, France.
Respondent is Laurent GRANIER, Santa Monica, California, United States of America.
2. The Domain Names and Registrar
The disputed Domain Names are registered with GoD, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 8, 2008. The same day, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed Domain Names. On July 8, 2008, GoD, Inc. transmitted by email to the Center its verification response, confirming that the Respondent was listed as the registrant and providing the contact details. The Center verified that 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 Respondent of the Complaint, and the proceedings commenced on July 22, 2008. In accordance with the Rules, paragraph 5(a), the due date for the Response was August 11, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 12, 2008.
The Center appointed Bernhard F. Meyer as Sole Panelist in this matter on August 20, 2008. 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
Complainant was founded in the early year of 1828 in France and is the owner of the following trademarks:
- International semi-figurative trademark MUTUELLES DU MANS ASSURANCES n�625531, registered on October 18, 1994, covering classes 36 and 39.
- French semi-figurative trademark MMA MUTUELLES DU MANS ASSURANCES n� 99781215, registered on March 17, 1999, covering classes 9, 14, 16, 18, 25, 28, 34, 36, 38 and 39.
5. Parties’ Contentions
A. Complainant
Complainant alleges that the disputed Domain Names are identical () or at least confusingly similar () to its trademark. Since Respondent is not a licensee of Complainant and has never been authorized to use Complainant’s notorious trademark, Respondent has no rights whatsoever to use these marks.
Furthermore, Complainant underlines, that Respondent has registered and uses the Domain Names at issue in bad faith, primarily perceivable by his abusive cyber-squatting conduct. Given the websites’ contents, Complainant asserts that Respondent’s only aim in registering the Domain Names at issue was to tarnish Complainant’s reputation.
B. Respondent
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
According to Paragraph 4 (a) of the Policy, Complainant must meet the burden of proof for the following:
(i) that Respondent’s Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) that Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Concerning the Domain Name , there is obviously no difference to Complainant’s trademark MUTUELLES DU MANS ASSURANCES if the spaces between the words are eliminated and the capitalized form of the letters is neglected. The Top Level identity (.com) is of no influence in this concern. Therefore, the Panel holds that the Domain Name is identical according to Paragraph 4(a)(i) of the Policy. The other Domain Name in dispute, , is simply the singular form of Complainants trademark MUTUELLES DU MANS ASSURANCES. It only lacks an “s” at the ending. There can be no doubt that such little difference can not prevent the Domain Name from being confusingly similar to Complainant’s trademark (see E, Inc. v. Digi Real Estate Foundation, WIPO Case No. D2006-1043; Debevoise & Plimpton LLP v. Keyword Marketing, Inc. / Web Advertising, Corp.,WIPO Case No. D2007-1679).
In the light of the above, the Panel finds that both Domain Names in dispute prove to be identical or confusingly similar to Complainant’s protected trademark. Therefore, Complainant prevails under Paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Respondent failed to reply to the Complaint within the time limits set by the Center. Therefore, the Panel must base his decision on the facts as submitted by Complainant.
Obviously, Respondent uses the disputed Domain Names and the connected websites to complain about and protest against the Complainant’s business. In this connection, the Panel believes that protest sites may have a legitimate purpose. The publication of protest on the Internet is one of the quintessential noncommercial fair uses that are envisioned by the Policy. Protest is an expression of free speech. It deserves protection in any developed legal system. Nevertheless, the principle of free speech shall not be abused, e.g. by disguising the true character of a protest site by using a domain name misleading the public.
Respondent chose to publish his protest against Complainant by simply using Complainant’s trademark as Domain Names. As a consequence, Internet users looking for Complainant may suddenly find themselves on a protest site which they were not looking for and which they may not appreciate. It is difficult to recognize a legitimate interest of Respondent to disseminate his protest in such a way. Although the noncommercial use of Respondent’s website is evident and not contested, it is the Panel’s view that protest is only legitimately disseminated through the Internet if the character of the website as a protest site is easily detectible from the domain name itself. Protest should be reflected in the domain name and not on the webpage’s content only. This can simply be done by adding the components “…sucks”, “…protest”, or the like to the trademark that is being used in the domain name. Under such circumstances, Internet users wishing to locate Complainant on the Internet have a choice whether or not they wish to visit the protest site. They do not get trapped on a protest site without prior warning.
Whether the criticism on a protest site is justified or not, is not relevant. The point is that Respondent’s use of the Domain Names misleads Internet users by channeling them to a website that they have not wished to see. It is the confusing and misleading conduct, arising from Respondent’s Domain Names, which leads the Panel to conclude that Respondent has no right or legitimate interest in the disputed Domain Names (see Banque Cantonale de Gen�ve v. Primatex Group S.A.,WIPO Case No. D2001-0477).
For the above reasons, the Panel holds under Paragraph 4(a)(ii) of the Policy that Respondent has no rights or legitimate interest in the Domain Names.
C. Registered and Used in Bad Faith
Paragraph 4 (b) of the Policy is setting out a non-exhaustive list of circumstances evidencing registration and use of a domain name in bad faith. The circumstances in this case do not appear in the list. However, this has not stopped previous panels from finding bad faith. The noncommercial use of a website, the absence of a competitive relationship between Complainant and Respondent has not prevented panels from qualifying such behavior as registration and use in bad faith. The fact that Complainant's business may be disrupted by Respondent's website, that Internet users are attracted to a protest site without warning, and the creation of a likelihood of confusion, were found to be indicative of bad faith (see Banque Cantonale de Gen�ve v. Primatex Group S.A.,WIPO Case No. D2001-0477; Hollenbeck Youth Center, Inc. v. Stephen Rowland,WIPO Case No. D2004-0032).
All indicative elements mentioned above are also present in this case. In accordance with previous UDRP Panel Decisions, the Panel finds that the noncommercial character of the website and the absence of a competition relationship between the parties do not prevent the finding of a registration and use in bad faith. Thus, Complainant prevails under Paragraph 4(a)(iii) 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 Names, and be transferred to Complainant.
Bernhard F. Meyer
Sole Panelist
Dated: September 4, 2008
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