WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Groupe Partouche v. Domains Discreet / mandarin data processing, raymond pousaz Case No. D2010-0618 1. The Parties
The Complainant is Groupe Partouche of Paris, France, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
The Respondent is Domains Discreet of Portugal / mandarin data processing, raymond pousaz of Belize. 2. The Domain Name and Registrar
The disputed domain name is registered with R. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 20, 2010. On April 20, 2010, the Center transmitted by email to R a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar 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 April 27, 2010 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 amendment to the Complaint on April 30, 2010. The Center verified that the Complaint together with the amendment to 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 May 3, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 23, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 25, 2010.
The Center appointed Edoardo Fano as the sole panelist in this matter on June 2, 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.
Having reviewed the communication records in the case file provided by the Center, the Panel finds that, in a scenario like the present one in which a privacy service is used, the Center has discharged its responsibility under the Rules, paragraph 2(a), “to employ reasonably available means calculated to achieve actual notice to Respondent”, by sending communications to both the original registrant contact details showing in the publicly-available WhoIs database and subsequent addresses and contacts made available through the Registrar.
Therefore, the Panel shall issue its decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of the Respondent's Response.
The language of the proceeding is English, being the language of the Registration Agreement. 4. Factual Background
The Complainant is Groupe Partouche, an international leader especially in the field of casinos, but also restaurants, hotels and entertainment services such as on-line gaming. It was created in France in 1973.
The Complainant is the owner of several trademark registrations containing the word PARTOUCHE in France and other countries, the oldest of which being:
- French Trademark Registration for PLAYERS PLUS GROUPE PARTOUCHE CASINOS & HOTELS, semi-figurative, No. 98762187, registered on November 26, 1998.
The Complainant is also the owner of several domain name registrations.containing the word PARTOUCHE, the two oldest being (registered in 1998) and (registered in 1999). Among them there is also , registered in 2004.
The Complainant provided evidence in support of its trademark and domain name registrations.
The Respondent's domain name was registered on July 19, 2001. At the time of the filing of the present Complaint, it pointed to a webpage where the Complainant's logo was reproduced and reference was made to the Complainant's on-line gaming activity with links to another website providing similar services. 5. Parties' Contentions A. Complainant
The Complainant states that the disputed domain name is confusingly similar to its trademark PARTOUCHE, with the mere addition of the word “casino”, which is generic or descriptive and does not change the fact that the Complainant's trademark is incorporated in full in the disputed domain name.
Moreover, the Respondent has no rights or legitimate interests in respect of the disputed domain name since it has not been authorized by the Complainant to register and use the disputed domain name and is not making a legitimate noncommercial or fair use of the disputed domain name.
The Complainant submits that the Respondent has registered, used, and continues to use the disputed domain name in bad faith.
In fact, the Complainant's trademark PARTOUCHE enjoys international reputation, in particular in the casino industry, and the Respondent could not have registered the disputed domain name without knowledge of the Complainant's trademark rights.
Moreover, the Complainant is a French group and the Respondent has used the disputed domain name for a website written in the French language for diverting Internet traffic to the Respondent's website for commercial gain.
By doing so, the Respondent is trying to use the reputation of the Complainant's trademark to advertise its own business and website, by claiming an affiliation with the Complainant and therefore causing confusion between the Complainant's trademark and the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions.
A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, facts asserted by a complainant may be taken as true, and reasonable inferences by the panel, in accordance with paragraph 14(b) of the Rules, may be drawn (see also Reuters Limited v. Global Net 2000, Inc,WIPO Case No. D2000-0441; Microsoft Corporation v. Freak Films Oy,WIPO Case No. D2003-0109; SSL International PLC v. Mark Freeman,WIPO Case No. D2000-1080; ALTAVISTA COMPANY v. GRANDTOTAL FINANCES LIMITED et. al.,WIPO Case No. D2000-0848; Confédération Nationale du Crédit Mutuel, Caisse Fédérale du Crédit Mutuel Nord Europe v. Marketing Total S.A.,WIPO Case No. D2007-0288). 6. Discussion and Findings
Paragraph 4(a) of the Policy lists three elements, which the Complainant must satisfy in order to succeed:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant is the owner of the trademark PARTOUCHE both by registration and use in commerce and that the disputed domain name is confusingly similar to the trademark PARTOUCHE.
Regarding the addition of the generic word “casino”, the Panel notes that it is now well established that the addition of generic terms to a domain name does not necessarily distinguish the domain name from a trademark (see, e.g., Aventis Pharma SA., Aventis Pharma Deutschland GmbH v. Jonathan Valicenti,WIPO Case No. D2005-0037; Red Bull GmbH v. Chai Larbthanasub, WIPO Case No. D2003-0709; America Online, Inc. v. Dolphin@Heart,WIPO Case No. D2000-0713). The addition of the word “casino” does not therefore prevent the disputed domain name from being confusingly similar to the Complainant's trademark.
It is also well accepted that a top-level domain, in this case “.com”, may be ignored when assessing identity of a mark and domain name (see, e.g., VAT Holding AG v. V,WIPO Case No. D2000-0607).
The Complainant has therefore met its burden of proving that the disputed domain name is confusingly similar to the Complainant's trademark, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
The Respondent has failed to file a Response in accordance with the Rules, paragraph 5.
The Complainant in its Complaint and as set out above has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not using the disputed domain name for a legitimate noncommercial or fair use or in connection with a bona fide offering of goods or services.
The prima facie case presented by the Complainant is enough to shift the burden of proof to the Respondent to demonstrate that it has a right or legitimate interest in the disputed domain name. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in the disputed domain name.
The Panel therefore finds that the Policy, paragraph 4(a)(ii), has been satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that for the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or has 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 trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) that the Respondent has registered the domain name in order to prevent the owner of the trademark 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) that the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the domain name, the Respondent had intentionally attempted to attract, for commercial gain, Internet users to the Respondent's 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 the Respondent's website or location.
As regards the registration in bad faith of the disputed domain name, the reputation of the Complainant's trademark is clearly established and the Panel finds that the Respondent knew or must have known that the disputed domain name was confusingly similar to a trademark of a third party.
Moreover, the addition of the generic word “casino” and the representation of the logo of the Complainant on the homepage of the website at the disputed domain name further suggest the Respondent's registration of the disputed domain name was in bad faith, since managing casinos is one of the Complainant's main activities.
The disputed domain name pointed to a website with information in the French language regarding the activities of the Complainant and, in the Panel's view, clearly suggesting some kind of connection between the Complainant and the Respondent.
The content of the website to which the disputed domain name was pointing further confirms the bad faith of the Respondent's registration of the domain name and is clear evidence of the disputed domain name being used in bad faith.
The disputed domain name was in fact used by the Respondent in order to divert Internet users to another website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the Respondent's website.
The Complainant's trademark PARTOUCHE is widely known, especially in the casino industry, and the Respondent was clearly aware thereof, since the website at the disputed domain name was full of references to the casino field and the Complainant's activities.
The Respondent is therefore intentionally attempting to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant's trademark (See, e.g., Pfizer, Inc. v. Seocho and Vladimir Snezko,WIPO Case No. D2001-1199; Pfizer, Inc. v. jg a/k/a Josh Green,WIPO Case No. D2004-0784; AVENTIS Pharma S.A. and Merrell Pharmaceuticals Inc. v. Rx USA,WIPO Case No. D2002-0290).
Considering the above, the Panel finds that the Complainant has presented evidence to satisfy its burden of proof with respect to the issue of whether the Respondent has registered and is using the disputed domain name in bad faith.
The Panel therefore finds that the Policy, paragraph 4(a)(iii) has been 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 disputed domain name be transferred to the Complainant.
Edoardo Fano
Sole Panelist
Dated: June 16, 2010
Full & Egal Universal Law Academy