WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Compagnie Gervais Danone v. A, Transure Enterprise Ltd Case No. D2009-1660 1. The Parties
The Complainant is Compagnie Gervais Danone of Paris, France, represented by Dreyfus & associés, France.
The Respondents are A of Beaumaris, Australia and Transure Enterprise Ltd of Tortola, British Virgin Islands (Overseas Territory of the United Kingdom of Great Britain and Northern Ireland). 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with A, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 3, 2009. On December 7, 2009, the Center transmitted by email to A, Inc. a request for registrar verification in connection with the Domain Name. On December 8, 2009, A, Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 10, 2009 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 15, 2009. The Center verified that the Complaint together with the amended 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 Respondents of the Complaint, and the proceedings commenced on December 15, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 4, 2010. The Respondents did not submit any response. Accordingly, the Center notified the Respondents' default on January 5, 2010.
The Center appointed Knud Wallberg as the sole panelist in this matter on January 14, 2010. 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 Compagnie Gervais Danone is a subsidiary of the French company Danone.
The Complainant owns numerous registrations worldwide for DANONE and the mark is registered in the country of residence of one of the Respondents, Australia, for various goods and services. The Complainant is also the owner of the domain name among others.
The Complainant sent a cease-and decist letter by e-mail to the Respondents on October 13, 2009 asking that the disputed domain name be transferred. The Respondents did not reply.
The disputed domain name is currently actively used as described in the Complaint. 5. Parties' Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to trademarks and domain names in which the Complainant has rights as it reproduces the sign DANONE with the addition of the letter “n”.
The Complainant states that the Respondents are not affiliated with the Complainant in any way, nor have the Respondents been authorized by the Complainant to register and use the Complainant's DANONE trademark or to seek registration of any domain name incorporating said mark. Also the Complainant claims that the Respondents are not currently known, nor have been known, by the name “Danonne” and has so far neither used nor made any demonstrable preparation to use the Domain Name or a name corresponding to the Domain Name in connection with bona fide offering of goods or services.
The Complainant further states that the Respondents use of the disputed Domain Name for a web site were numerous pay-per-click links are published does not represent a use in connection with a bona fide offering of goods and services.
As to the issue of bad faith, the Complainant claims that the trademark DANONE is widely known in the world, and the fact that Domain Name has been used by the Respondents for a website containing various commercial links related to the areas of business that the Complainant uses the mark DANONE for. The said circumstance proves that the Respondents were aware of the Complainant's trademark rights in DANONE and wanted to take advantage of the trademarks' fame diverting consumers to his web site. B. Respondents
The Respondents did not reply to the Complainant's contentions. 6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the 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 Domain Name has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all three elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate. A. Identical or Confusingly Similar
The Domain Name contains Complainant's distinctive trademark DANONE, with the addition of an “n” and of the “.com” designation.
Since the inclusion of the gTLD denomination “.com” shall be disregarded for the purpose of these proceedings the Panel finds that the Domain Name is confusingly similar to the Complainant's registered trademarks and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled. B. Respondents Rights or Legitimate Interests
According to the Complaint, the Complainant has not licensed or otherwise permitted the Respondents to use its trademark or to apply for any domain name incorporating the mark.
The Panel is satisfied that the Complainant has established a prima facie case that the Respondents have no rights or legitimate interests in the Domain Name. The Respondents have not rebutted this by way of a formal Response or otherwise. The Domain Name was registered several years after the Complainant registered and started using its trade mark, and the Respondents have and are still using the Domain Name for a website that contains only links to other websites – among others links to websites that relates to various kinds of foodstuffs. The Respondents thus could not credibly claim that the Domain Name is intended to be used for any legitimate interests and such a claim would in any event also be contrary to the way the Respondents have used the Domain Name, namely for a website that contains only links to other sites. The Panel further refers to its below findings in relation to the actual use made of the Domain Name.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy, with reference to paragraph 4(c) of the Policy, are also fulfilled. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b)(i) of the Policy provides an example of circumstances which shall be evidence of registration and use in bad faith.
Given the distinctive character of the Complainant's trade it is inconceivable to the Panel that the Respondents were not aware of the Complainant and the Complainant's activities when registering the Domain Name. Further, the Panel finds that the Respondents could not have been unaware of the fact that it chose a name which could attract Internet users in a manner that is likely to create confusion for such users.
The Panel therefore finds that the Domain Name was registered in bad faith.
Given the extent of use of the Complainant's trademark and the distinctive nature of the mark it is inconceivable to the Panel in the current circumstances that the Respondents registered the Domain Name without prior knowledge of the Complainant and the Complainant's mark.
This is underlined by the fact that the Domain Name, at the time of the filing of the Complaint was used for a website that contained links to other websites including links related to various kinds of foodstuffs. The Panel therefore finds that the Respondents by their registration and use of the Domain Name, intentionally created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the Domain Name with the purpose of attracting Internet users to the website for commercial gain.
Accordingly, the Panel finds that the Domain Name was registered and is being used in bad faith. The Complainant has proved element 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 cancelled.
Knud Wallberg
Sole Panelist
Dated: January 27, 2009
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