WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Royal Canin SA v. Zsofia Tallai Case No. D2009-0241 1. The Parties
The Complainant is Royal Canin SA of Aimargues, France, represented by Dreyfus & associés, France.
The Respondent is Zsofia Tallai of California, United States of America (“USA”). 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Melbourne IT Ltd (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on February 23, 2009, and in hard copy on March 2, 2009.
The Center transmitted its request for registrar verification to the Registrar by email on February 24, 2009. The Registrar replied on February 27, 2009, confirming that it was the registrar and the Respondent was the registrant of the Domain Name, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied to the Domain Name, that the Domain Name would remain locked during this proceeding, that the language of the registration agreement was English and that the registration agreement stated that the registrant submitted to the jurisdiction of the courts as provided in the UDRP. The Registrar provided the contact details on its WhoIs database in respect of the Domain Name and stated that it had not received a copy of the Complaint.
The Complainant transmitted a copy of the Complaint by email to the Respondent on March 4, 2009.
The Center verified that the Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 4, 2009. In accordance with paragraph 5(a) of the Rules, the due date for Response was March 24, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 25, 2009.
The Center appointed Jonathan Turner as the sole panelist in this matter on April 1, 2009. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules.
Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules. 4. Factual Background
The Complainant's group is a leading supplier of health nutrition for dogs and cats around the world, including the USA where it has a factory. It has research centres in France, the United Kingdom of Great Britain and Northern Ireland and Brazil, and provides scholarships to students of accredited veterinary schools in the USA. It has also established its Royal Canin Campus to bring together sources of knowledge of dogs and cats.
The Complainant has registered ROYAL CANIN and logos incorporating the words “Royal Canin” as trademarks in numerous countries around the world. It has also registered a number of domain names containing “royalcanin” or “royal-canin” as the second level domain.
The Domain Name currently locates a web page which merely display a banner with the words “This site is under construction” and a field for a search term to be typed in by the user. On July 22, 2008, the web page also contained a variety of links to categories of services or goods not apparently related to the Complainant. When the term “royal canin” was typed in by the user, links relating to the Complainant and its competitors were displayed.
The Complainant sent a cease and desist letter to the Respondent on September 11, 2008, with reminders on September 19, October 2 and October 10, 2008, but the Respondent did not reply or comply. 5. Parties' Contentions A. Complainant
The Complainant states that it has rights in the mark ROYAL CANIN which are registered in numerous countries around the world. The Complainant contends that the Domain Name reproduces its mark in its entirety, and that the addition of the letter “e”, the generic word “academy” and the generic top level domain suffix are not sufficient to distinguish the Domain Name. The Complainant also points out that “canine” is the English translation of “canin” and thus the addition of the letter “e” maintains the likelihood of confusion on the part of Internet users.
The Complainant submits that the Respondent has no rights or legitimate interests in the Domain Name, pointing out that the Respondent has not been authorised to use the Complainant's mark, that it had no prior rights or legitimate interests in the Domain Name, that it has not used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services, and that it is not known by the name “ROYAL CANIN”. The Complainant also refers to the fact that the Respondent did not reply to the Complainant's cease and desist letter as indicating that it has no legitimate interest.
The Complainant alleges that the Domain Name was registered and is being used in bad faith. According to the Complainant, the Respondent must have known of the Complainant's ROYAL CANIN mark since this mark is well known around the world including in the USA where the Respondent is located. The Complainant points out that when a search was carried out in respect of the term ROYAL CANIN on the Respondent's web page prior to the cease and desist letter, the results displayed numerous links relating to the Complainant and its competitors; but this changed following the cease and desist letter. The Complainant alleges that the Domain Name was directed to a web page displaying links which provided pay-per-click revenue for the Respondent and submits that the use of its famous mark to attract Internet users to a website for commercial gain constitutes use in bad faith. The Complainant also refers to the Respondent's failure to respond to its cease and desist letter as evidence of bad faith.
The Complainant requests a decision that the Domain Name be transferred to it. B. Respondent
As stated above, the Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the 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.
In accordance with paragraph 14(b) of the Rules the Panel shall draw such inferences from the Respondent's default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed. A. Identical or Confusingly Similar The Panel finds that the Complainant has registered rights in the mark ROYAL CANIN.
The Panel further finds that the Domain Name is confusingly similar to this mark from which it differs only in the additions of the letter “e”, the generic word “academy” and the generic top level domain suffix. The Panel notes that “canine” is a translation into English of the French word “canin”, and that English users would therefore be likely to identify the words “Royal Canine” with the Complainant. The Panel considers that many Internet users familiar with the Complainant's activities would understand the Domain Name to refer to a research or learning center operated by the Complainant.
The first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
The Panel finds that the Respondent has used the Domain Name for a parking page merely providing a search facility and, previously, links to various categories of services and goods. In the Panel's view, this use of the Domain Name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the Domain Name. Nor is there any evidence of demonstrable preparations to use the Domain Name for either of these purposes.
The Panel also finds that the Respondent is not commonly known by the Domain Name and that there is no other basis on which it can claim to have rights or legitimate interests in respect of the Domain Name.
The second requirement of the Policy is satisfied. C. Registered and Used in Bad Faith
The Panel notes that the Domain Name is unusual and considers that it is most unlikely to have been registered or acquired without knowledge of the Complainant.
The Panel finds that the Domain Name was previously directed to a web page of sponsored links. By using the Domain Name in this way, the Respondent has intentionally attempted to attract Internet users to its web page by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of its web page, for commercial gain in the form of click-through commissions.
In accordance with paragraph 4(b)(iv) of the UDRP, these circumstances are evidence that the Domain Name was registered and is being used in bad faith. There is nothing in the file which displaces this presumption. The third requirement of the UDRP is satisfied. 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.
Jonathan Turner
Sole Panelist
Dated: April 14, 2009
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