WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION VIEW POINT BV v. Tsili, Anastasios Tsiligiannis Case No. D2009-1118 1. The Parties
The Complainant is VIEW POINT BV of Amsterdam, the Netherlands, represented by Schmit Chrétien SNC, France.
The Respondent is Tsili, Anastasios Tsiligiannis of Athens, Greece. 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 August 20, 2009. On August 20, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On August 21, 2009, eNom 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 31, 2009. In accordance with paragraph 5(a) of the Rules, the due date for Response was September 20, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on September 21, 2009.
The Center appointed Brigitte Joppich as the sole panelist in this matter on September 29, 2009. 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 paragraph 7 of the Rules. 4. Factual Background
Maria Duval is the name of a clairvoyant carrying out her activities through the Complainant. Maria Duval registered various trademarks (the “MARIA DUVAL Marks”) and transferred them to the Complainant, inter alia:
domain name was first created on May 20, 1999 and resolves to the web-French Trademark MARIA DUVAL no. 1323581 with a priority of September 13, 1985, registered in classes 5, 25 and 42,
- International Trademark MARIA DUVAL no. 635825, registered for many countries worldwide on March 29, 1995 in classes 5, 25 and 42, and
- International Trademark MARIA DUVAL no. 861383, also registered for many territories worldwide, including the European Community, on July. 29, 2005 in classes 16, 35 and 45.
The disputed site at the domain name commenting on the activities of Maria Duval under the header “Maria Duval Scam”. The Complainant sent a cease and desist letter to the Respondent on June 10, 2009 which was left unanswered. 5. Parties' Contentions A. Complainant
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy is given in the present case:
(1) The Complainant contends that the disputed domain name is essentially identical with and therefore confusingly similar to the MARIA DUVAL Marks as it consists of the Complainant's marks to which only the suffix “.com” is added, which is without legal significance.
(2) The Complainant further contends that the Respondent is not commonly known by the disputed domain name nor has been authorized by the Complainant to use the MARIA DUVAL Marks. The Complainant states that the Respondent does not use and has not made any preparations to use the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods and services, but rather to tarnish the Complainant's marks by redirecting Internet users to a website vilifying the activities of the clairvoyant Maria Duval.
(3) The Complainant finally contends that the disputed domain name was registered and is being used in bad faith as Maria Duval is supposed to be known worldwide, advising individuals as well as international celebrities and politicians, her website being translated into thirteen languages. The Complainant alleges that the Respondent registered the disputed domain name primarily for the purpose of disrupting the business of a competitor, such disruption consisting of an illegitimate intent of parasitism and denigration to the prejudice of the Complainant by redirecting Internet users to a website stating inter alia:
“Maria Duval scam continues in Smart Source Canada”
“remember there is no Maria Duval”
“The scammers from Maria Duval are at it again”
“Maria Duval is the front-name for a scam operating all over Europe, North America, Australia and New Zealand” B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:
(i) the domain names is identical or confusingly similar to the Complainant's trade mark; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The disputed domain name fully incorporates the Complainant's MARIA DUVAL Marks.
It is well established that the specific top level domain name generally is not an element of distinctiveness that can be taken into consideration when evaluating the identity or confusing similarity between the complainant's trademark and the disputed domain name (cf. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429; Phenomedia AG v. Meta Verzeichnis Com,WIPO Case No. D2001-0374).
Therefore, the Panel finds that the disputed domain name is identical to the Complainant's MARIA DUVAL Marks and that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by a respondent, shall demonstrate its rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to the respondent of the dispute, the use by the respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) 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; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
Even though the Policy requires the complainant to prove that the respondent has no rights or legitimate interests in the disputed domain name, it is the consensus view among panelists that a complainant has to make only a prima facie case to fulfill the requirements of paragraph 4(a)(ii) of the Policy. As a result, the burden of proving that the respondent has rights or legitimate interests in the disputed domain name will then shift to the respondent.
The Complainant has asserted that the Respondent is not commonly known by the disputed domain name nor has been authorized by the Complainant to use the MARIA DUVAL Marks, and that the Respondent does not use and has not made any preparations to use the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods and services. The Complainant has therefore fulfilled its obligations under paragraph 4(a)(ii) of the Policy.
The Respondent did not deny these assertions in any way.
Furthermore, the Panel cannot find any evidence of the Respondent's rights or legitimate interests in the disputed domain name in the case file as presented by the Complainant, either. In particular, the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. The disputed domain name resolves to the website at commenting on the activities of Maria Duval. A website providing true information on Internet scam may theoretically constitute a legitimate noncommercial or fair use of a domain name. However, the Respondent's use of the disputed domain name does not comply with the requirements of a legitimate noncommercial or fair use as the website available at the disputed domain name shows advertisements for third parties' products and therefore is of a commercial nature. The fact that the Respondent only redirects the disputed domain name to such website and might itself not profit from the commercial activity does not hinder such finding. The advertisements must be attributed to the Respondent who controls the disputed domain name and the use made thereof (cf. Bilfinger Berger AG v. eService Finance Dept.,WIPO Case No. D2003-0827; EasyGroup IP Licensing Limited v. Amjad Kausar,WIPO Case No. D2003-0012).
Accordingly, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests in respect of the disputed domain name under paragraphs 4(a)(ii) and 4(c) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which are evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, i.e.:
(i) circumstances indicating that the respondent has registered or 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 trade mark 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; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its 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 its website or location.
The circumstances mentioned in paragraph 4(b) of the Policy are not exclusive, while the two elements of the third requirement of the Policy are cumulative conditions: the Complainant must show that the disputed domain name was registered in bad faith and is being used in bad faith. This point is clear from the wording of the Policy and has been confirmed ever since Telstra Corporation Limited. v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (cf. also Telstra Corporation Limited v. Adult Web Development and Telstraexposed,WIPO Case No. D2002-0952; Telstra Corporation Ltd v. David Whittle,WIPO Case No. D2001-0434; Prada S.A. v. Mr. Chuan Sheng Wang,WIPO Case No. D2003-0758).
The Complainant submitted that an individual named Maria Duval has been carrying out activities as a clairvoyant for more than 25 years, and that she is known worldwide for advising individuals as well as international celebrities and politicians. Given the fact that the Respondent's website includes information on Maria Duval, the Panel is confident that the Respondent registered the disputed domain name with Maria Duval in mind and therefore in bad faith.
As to bad faith use, by fully incorporating the MARIA DUVAL Marks into the disputed domain name and by using the disputed domain name to a website with advertising links to third parties' websites the Respondent was, in all likelihood, trying to divert traffic intended for the Complainant's website to its own for commercial gain. Such use and exploitation of trademarks to obtain commercial profit from the diversion of Internet users has in many decisions been found to be use in bad faith under paragraph 4(b)(iv) of the Policy (cf. America Online, Inc. v. Tencent Communications Corp., NAF Case No. FA 93668; Lilly ICOS LLC v. John Hopking/Neo net Ltd.,WIPO Case No. D2005-0694; Lilly ICOS LLC v. East Coast Webs, Sean Lowery,WIPO Case No. D2004-1101). The Panel is therefore satisfied that the Respondent has also used the disputed domain name in bad faith under paragraph 4(b)(iv) of the Policy.
Further to the above, the Respondent has not submitted any response. Consequently, the Panel finds that the Respondent registered and used the disputed domain name in bad faith and that the Complainant has satisfied the requirements of 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 name be transferred to the Complainant.
Brigitte Joppich
Sole Panelist
Dated: October 11, 2009
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