WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Planete Tortue v. Richard J. Case No. D2009-1480 1. The Parties
The Complainant is Planete Tortue of Aix-en-Provence, France, represented by Tmark Conseils, France.
The Respondent is Richard J., of 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 November 2, 2009. On November 2, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On November 3, 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. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 6, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was November 26, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 30, 2009.
The Center appointed Adam Samuel as the sole panelist in this matter on December 3, 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 the Rules, paragraph 7. 4. Factual Background
The Complainant has been designing and selling clothing articles for children and women since 1993.
The Complainant is the owner of the French trademark No. 023185332, registered in 2002 and the international trademark No. 817180 registered on October 29, 2003, both for the name MISS CAPTAIN.
The disputed domain name was registered on November 23, 2005. 5. Parties' Contentions A. Complainant
Here are the Complainant's contentions with which the Panel may or may not agree.
The disputed domain name is identical to the Complainant's trademark, the term “.com” being just a generic extension.
International, Community, French and American trademark databases do not show any trademark containing the words MISS CAPTAIN in the name of the Respondent. The Respondent has never been commonly known by the disputed domain name. A Google search reveals no reference to the use of the Complainant's trademark in connection with the Respondent. All this shows a lack of legitimate interest on his part in the name.
The Complainant has been pursuing its main activities since 1993 in France and other European countries. The disputed domain name was registered in 2005 when the Respondent could not have been unaware of the Complainant's trademark. The disputed domain name is used for a parking website with various sponsored links for pornographic or fashion websites. The Respondent has perniciously selected links to pornographic sites to damage the Complainant's reputation. The disputed domain name also has an apparent link to the Complainant's trademark which does not resolve to any website of the Complainant. The Respondent has no interest in the disputed domain name. He just wants to create a risk of confusion by making an illegitimate commercial use of it and by attempting to attract for commercial gain Internet users to his website. The registration prevents the Complainant from owning a domain name identical to its trademark in a “.com” form. The Respondent is the owner of 945 domain names and is a regular Respondent in UDRP proceedings. In eight cases, all concerning French companies like the Complainant, the WIPO UDRP panels concerned have ordered the transfer of the domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under the Policy, the Complainant must prove that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which it has rights; 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 Complainant owns the trademark MISS CAPTAIN in France. The disputed domain name is identical to that trademark except for the necessary addition of the suffix “.com”. It is at the very least confusingly similar to the Complainant's trademark. B. Rights or Legitimate Interests
The Respondent is not called “Miss Captain” or anything similar and does not appear to trade under that or any related name. The website, to which the disputed domain name resolves, appears never to have been active except as a parking page. There is no evidence that the Complainant has authorized the Respondent to use its trademark. The Respondent has never asserted any rights or legitimate interests in that name. For these reasons, on the basis of the available record, notably the absence of a Response, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
While the words “Miss Captain” are both common in English, the combination of them is not. The domain name was registered after the trademark was registered in France and internationally. This would suggest that the Respondent was aware of the Complainant's trademark when he registered the disputed domain name. The WIPO database indicates that the Respondent has been found to have acted in bad faith in relation to French companies on at least eight occasions.
In the absence of any response to the Complaint, the only explanation for the Respondent's registration of the disputed domain name seems to be, as the Complainant says, simply to disrupt the Complainant's relationship with its customers or potential customers, attempt to attract Internet users for potential gain or perhaps also persuade the Complainant to buy the domain name from it for an amount in excess of the Respondent's out-of-pocket expenses. These all constitute evidence of registration and use in bad faith: paragraph 4(b)(i), (ii) and (iii) of the Policy.
In the circumstances, it is unnecessary to deal with the Complainant's other allegations. For all the above reasons, the Panel concludes that the disputed domain name was registered and is being used in bad faith. 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.
Adam Samuel
Sole Panelist
Dated: December 9, 2009
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