WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Alinea v. Joshua Lim, Visualtron Software (S) Pte Ltd Case No. D2010-1057 1. The Parties
The Complainant is Alinea of Croix, France, represented by Tmark Conseils, France.
The Respondent is Joshua Lim, Visualtron Software (S) Pte Ltd of Singapore. 2. The Domain Name and Registrar
The disputed domain name is registered with Moniker Online Services, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 25, 2010. On June 28, 2010, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the disputed domain name. On June 29, 2010, Moniker Online Services, LLC 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 July 1, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was July 21, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 23, 2010.
The Center appointed Dr. Clive N.A. Trotman as the sole panelist in this matter on July 29, 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 states that it is well-known in France for the manufacture of furniture and decorations. The Complainant claims ownership of trademarks bearing the name ALINEA, including the following:
French trademark, number 1640495, registered June 28, 1991, in classes 11, 19, 20, 21, 27;
French trademark, number 1313711, registered December 13, 1985, in class 24;
International trademark (certain European countries, with limitations), registration number 709653, registered February 26, 1999, in classes 11, 20, 21, 24, 27.
The Complainant states that it has owned the domain name since April 13, 2002.
Nothing is known about the Respondent except for the details provided in the registration of the disputed domain name.
The disputed domain name appears to have been registered on August 6, 2006. 5. Parties' Contentions A. Complainant
The Complainant has produced documentary evidence in support of its claim to have rights in the trademarks listed above.
The Complainant contends that the disputed domain name is effectively identical to its trademark ALINEA and that the component “.com” of the disputed domain name, being a technical requirement, may be disregarded.
The Complainant further contends that the Respondent does not have rights or legitimate interests in the disputed domain name. Internet and trademark searches have failed to find evidence that the Respondent has any rights in the disputed domain name. There is no evidence that the Respondent has used the disputed domain name for any legitimate offering of goods or services, has been generally known by the disputed domain name, or has made any legitimate noncommercial or fair use of it.
The Complainant further contends that the Respondent registered and has used the disputed domain name in bad faith.
Registration of the disputed domain name post-dates the registration of the Complainant's trademark. The Complainant's trademark is so well-known in France that the Respondent must have known about it. The website to which the disputed domain name resolves is used by the Respondent to refer visitors to links for furniture and goods in the same field of business as the Complainant. The Complainant says that this is done in order to create confusion as to the source and sponsorship of the Respondent's website.
The Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy states that the Respondent is required:
“…to submit to a mandatory administrative proceeding in the event that a third party (a ‘complainant') asserts to the applicable Provider, in compliance with the Rules of Procedure, that
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.”
The Complainant has made the relevant assertions as above. The dispute is properly within the scope of the Policy and the Panel has jurisdiction to decide the dispute. A. Identical or Confusingly Similar
The Panel is satisfied by the evidence adduced that the Complainant has rights in the registered trademark ALINEA. The disputed domain name is , which differs from the Complainant's trademark solely by the addition of a French-style acute accent, the component “.com” being of no significance for the determination of confusing similarity under the Policy.
At present, the use of an acute accent in a domain name requires an indirect operation by software that converts into . The facility for use of the acute accent and thereby directly the disputed domain name is expected to become available. For confusing similarity to be found under paragraph 4(a)(i) of the Policy, the key requirement is that the “...domain name is identical or confusingly similar to a trademark...”. The Panel finds the disputed domain name is confusingly similar to the Complainant's trademark within the meaning of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant must prove that the Respondent does not have rights or legitimate interests in the disputed domain name. According to the Complainant's certified statement, enquiries through the Internet and trademark searches have found no evidence that the Respondent has any rights in the disputed domain name. Furthermore no evidence has been found for the Respondent having used the disputed domain name for a legitimate offering of goods or services, or that the Respondent has been generally known by the disputed domain name, or has made any legitimate noncommercial or fair use of it.
The Respondent had the opportunity under paragraph 4(c) of the Policy or otherwise to refute the prima facie case made out by the Complainant, but has made no reply. The Panel finds for the Complainant in the terms of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Complainant is required to prove that the disputed domain name was registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four circumstances that, without limitation, shall be evidence of the registration and use of a domain name in bad faith:
“(i) circumstances indicating that you [the Respondent] have registered or you have 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 your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product or service on your web site or location.”
The documentary evidence in the form of screen capture shows the Respondent's website, to which the disputed domain name resolves, to be a click-through or pay-per-click referral website. The website clearly is set up to refer visitors to a variety of external websites by means of hyperlinks, whereby clicking on the link causes a visitor to the Respondent's website to be connected to an external website. The standard business model in this context is that the website that benefits from the referral, in return for that referral, pays a commission to the referring website. This business model may be entirely legitimate and is widely used either to subsidise the operation of a conventional website or as a revenue-generating business in its own right.
In the present instance, however, the evidence shows that the Respondent's website offers visitors links to a variety of suppliers of furniture and fitments who, it would appear, are competitors in the same field of business as the Complainant. In order to be remunerative the Respondent's operation must depend upon the attraction of visitors. The evidence is indicative of an intention by the Respondent to attract visitors by means of a domain name that may be displayed by search engines or may be found by the exploratory searches of Internet users and is likely to be associated mistakenly with the Complainant's trademark, which is well-known in the relevant field of business. Thus the Respondent is found to be intending to attract Internet users by initial interest confusion with the Complainant's trademark for the purpose of commercial gain. The Panel finds that the Respondent has registered and has used the disputed domain name in bad faith within the terms of paragraphs 4(b)(iv) and 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.
Dr. Clive N.A. Trotman
Sole Panelist
Dated: August 3, 2010
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