WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Jacqueline Riu and Société Riu Aublet et Compagnie v. Olivia Marimelado Case No. D2010-0170 1. The Parties
The Complainants are Jacqueline Riu of Longpont s/Orge, France, and Société Riu Aublet et Compagnie of Saint-Michel s/Orge, France, represented by Cabinet Herrburger, France.
The Respondent is Olivia Marimelado of Panama, represented by Eva Cohen, 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 is registered with Communigal Communications Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 5, 2010. On February 5, 2010, the Center transmitted by email to Communigal Communications Ltd. a request for registrar verification in connection with the disputed domain name. On February 8, 2010, Communigal Communications Ltd. 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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 9, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 1, 2010. The Response was filed with the Center on March 1, 2010.
The Center appointed Andrew Frederick Christie as the sole panelist in this matter on March 11, 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
Jacqueline Riu is a French citizen and owner of French trademark JACQUELINE RIU No. 1 521 792 filed on March 30, 1989 in classes 3, 14, 18 and 25 for various goods including laundry products, cosmetics, jewellery, leather goods, clothing and footwear. She is the founder of Jacqueline Riu Company and is the Vice-president of the Supervisory Board of S.A. Riu Aublet et Cie. Riu Aublet et Cie is a French stock company and proprietor of various trademarks incorporating the words “Jacqueline Riu” registered between 2003 and 2008 in France, the Benelux countries, Poland and Saudi Arabia. Riu Aublet et Cie's range of products are sold in shops in France, Poland (19 to date), Saudi Arabia (12 to date), Reunion and Belgium.
The disputed domain name was registered by the Respondent on February 23, 2000. The Respondent is the Internet Manager of VENUS Television, an adult television channel for men. As of at least early 2009, the disputed domain name was used as the URL for a website portal for pornography. The Complainant's lawyer sent a letter to the Respondent on July 20, 2009 requesting that the use of the domain name cease and that it be reassigned to the Complainant. The Complainant's lawyer sent another letter to the Respondent on December 3, 2009. There was no reply to either letter. 5. Parties' Contentions A. Complainants
The Complainants contend that the disputed domain name is identical to the first Complainant's trademark as it incorporates the whole of the first Complainant's mark. The omission of a space between the two words JACQUELINE and RIU in the disputed domain name does not create a distinct characteristic because spaces are not allowed in domain names. Similarly, the addition of “.com” does not create a distinct feature capable of overcoming a claim of identical or confusing similarity.
The Complainants contend that the Respondent has no rights or legitimate interests in respect of the disputed domain name as the first Complainant's French trademark was registered 11 years prior to the registration of the disputed domain name. The Complainants contend that the Respondent has not used the disputed domain name in connection with an offer for goods and services made in good faith as it is linked to a pornographic website.
The Complainants contend that the disputed domain name was registered and is being used in bad faith as the Respondent is using the first Complainant's trademark to attract Internet users to its pornographic websites from which it makes a profit. This creates Internet confusion for the Complainants' clients and affects the Complainants' commercial operations. Further, the Complainants contend that the Respondent is not in possession of any right to a corresponding trademark for goods and services. B. Respondent
The Respondent contends that the disputed domain name belongs to a Director of VENUS Television, Mr. Jacque Lineriu, a Latvian citizen, who registered it because it was available for anyone to register and it incorporates his personal name. The Respondent contends that the disputed domain name is not identical to any of the trademarks except the French one, but that this is protected by the “.fr” after “jacquelineriu”.
The Respondent contends that Mr. Jacque Lineriu exploits his own services on the disputed domain name's website and therefore has rights or legitimate interests in the disputed domain name. These services are “adult services” and have nothing to do with the Complainants' activity.
The Respondent claims that the disputed domain name was not registered and is not being used in bad faith as: it has never tried to sell it to the Complainants; it did not intend to disrupt the Complainants' business or confuse their customers; it did not intend to prevent the Complainants from owning a domain name incorporating their trademarks; it did not intend to attract Internet users to its website by creating a likelihood of confusion with the Complainants; and it is in a completely different business from the Complainants, namely adult television rather than fashion.
The Respondent contends that no letters were received from the Complainants and that the Website was always online and remained unchanged. 6. Discussion and Findings A. Multiple Complainants
It is now well established that a single complaint may be brought under the Policy by multiple complainants where the multiple complainants have a common grievance against the respondent – see National Dial A Word Registry Ltd and others v. 1300 Directory Pty Ltd.,WIPO Case No. DAU2008-0021, which was subsequently adopted and applied in relation to the Policy by Fulham Football Club (1987) Limited, Tottenham Hostpur Public Limited, West Ham United Football Club PLC, Manchester United Limited, The Liverpool Football Club And Athletic Grounds Limited v. Domains by Proxy, Inc. / Official Tickets Ltd,WIPO Case No. D2009-0331, among others. One example of a common grievance entitling consolidation of complainants is where the complainants share an interest in trademarks allegedly affected by the respondent's registration of the disputed domain name: National Dial A Word Registry Pty Ltd and others v. 1300 Directory Pty Ltd,WIPO Case No. DAU2008-0021. In this case, each of the Complainants owns at least one trademark registration for the same trademark, JACQUELINE RIU, and the Complainants have a proven corporate connection. This Panel finds that these circumstances entitle the Complainants to bring this Complaint against the Respondent. B. Identical or Confusingly Similar
The disputed domain name consists of the Complainants' trademark JACQUELINE RIU, together with the TLD identifier. This Panel finds that the disputed domain name is identical to a trademark in which the Complainants have rights. C. Rights or Legitimate Interests
The Respondent's claim that the disputed domain name was registered because it is the name of a Director of the entity for which the Respondent is the Internet Manager is not supported by any evidence. If a Mr. Jaque Lineriu does exist and he is a Director of the entity employing the Respondent, it would be an easy matter for the Respondent to prove this fact. Notably, the Respondent provided no evidence whatsoever in support of this assertion. The assertion alone in the present circumstances is simply not plausible. This Panel finds that the Respondent has no right or legitimate interest in the disputed domain name. D. Registered and Used in Bad Faith
The Complainants provided evidence supporting their assertion that the disputed domain name is used as the URL for a website portal for pornography. The facts that the disputed domain name is identical to the first Complainant's trademark, that the first Complainant's trademark was registered more than 10 years before the Respondent registered the disputed domain name, and that Respondent has no rights or legitimate interest in the disputed domain name, all support a conclusion that the Respondent registered the disputed domain name with knowledge of the existence of the first Complainant's trademark and for the purposes of deriving a benefit from the reputation of the first Complainant's trademark. This conclusion is further supported by the fact of the actual use to which the Respondent has put the disputed domain name – namely, as the URL for a pornography website portal. This Panel finds that the Respondent registered and is using the disputed domain name 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 first Complainant, Madame Jaqueline Riu.
Andrew F. Christie
Sole Panelist
Dated: March 26, 2010
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