Complainant is Meilleurtaux of Paris, France, represented by Teissonnière Sardain Chevé A.A.R.P.I., France.
Respondent is Domain Manager of Bondi Junction, New South Wales, Australia. 2. The Domain Name and Registrar
The disputed domain name (the “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 August 2, 2010. On August 2, 2010, the Center transmitted by e-mail to Moniker Online Services, LLC a request for registrar verification in connection with the disputed domain name. On August 3, 2010, Moniker Online Services, LLC transmitted by e-mail to the Center its verification response, providing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amendment to the Complaint on August 10, 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 Respondent of the Complaint, and the proceedings commenced on August 11, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was August 31, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent of its default on September 1, 2010.
The Center appointed Robert A. Badgley as the sole panelist in this matter on September 10, 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 following facts are alleged in the Complaint, supported by annexes in the record, and unrebutted by Respondent.
Founded in 1999, Complainant is a well-known French mortgage and insurance broker. For several years, Complainant has held numerous trademark registrations for the mark MEILLEURTAUX in France and the European Union in connection with Complainants activities of mortgage and insurance brokerage.
Complainant has opened more than 130 agencies in France and is often referred to in press articles (e.g., Le Monde, Les Echos, Le Point, Le Journal du Dimanche), on the Internet, on radio, and on television. Complainant’s main website is located via the domain name .
Respondent registered the Domain Name on December 23, 2009. The website to which the Domain Name resolves provides pay-per-click advertising which directs Internet users to the websites of Complainant’s direct competitors. 5. Parties’ Contentions A. Complainant
Complainant’s salient factual contentions are set forth in the “Factual Background” section above. Complainant’s arguments will be discussed in the “Discussion and Findings” section below. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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
Complainant clearly has registered trademark rights in the mark MEILLEURTAUX. The only difference between the mark and the Domain Name is the latter’s addition of the letters “www” at the beginning of the Second-Level Domain, i.e., just after the “.www” in the URL. The Panel finds that the mere addition of these three letters does not overcome the confusing similarity created by the identical characters in the mark and the dominant portion of the Second-Level Domain. See InfoS, Inc. v. Registrar Administrator Lew Blanck,WIPO Case No. D2000-0069 (Apr. 3, 2000) (involving ).
Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied. B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the domain name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant bears the burden of proof on the “rights or legitimate interests” issue (as it does for all three elements of the Policy). Louis de Bernieres v. Old Barn Studios Limited,WIPO Case No. D2001-0122 (March 26, 2001). Nevertheless, the panel in PepsiCo, Inc. v. Amilcar Perez Lista d/b/a Cybersor,WIPO Case No. D2003-0174 (Apr. 22, 2003), rightly observed as follows: “A respondent is not obliged to participate in a domain name dispute proceeding, but its failure to do so can lead to an administrative panel accepting as true the assertions of a complainant which are not unreasonable and leaves the respondent open to the legitimate inferences which flow from the information provided by a complainant.” As noted above, Respondent did not file a Response and hence did not attempt to rebut any of Complainant’s assertions.
There is no evidence that Respondent has ever been authorized to use Complainant’s mark in a domain name or otherwise. Likewise, there is no evidence that Respondent is commonly known by the Domain Name, or has made substantial preparations to use the Domain Name in connection with a bona fide offering of goods or services. The offering, through hyperlinks on a website located at a confusingly similar domain name, of goods or services that directly compete with Complainant’s services is not a bona fide offering of goods or services. Finally, Respondent has not claimed any noncommercial or fair use of the MEILLEURTAUX mark in the Domain Name, and the Panel finds no basis for recognizing any such use.
Accordingly, the Panel finds that Policy paragraph 4(a)(ii) is satisfied. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to 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 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 Respondent has engaged in a pattern of such conduct; or
(iii) that 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, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent had Complainant’s mark in mind when registering the Domain Name. This is easily inferred by the fact that Respondent’s website provides links to websites in the same field of economic activity as Complainant.
The Panel finds bad faith under paragraph 4(b)(iv). The record demonstrates that Respondent is seeking to attract Internet users who inadvertently type a superfluous “www” while keying Complainant’s main domain name into an Internet browser bar. Once errantly arrived at Respondent’s site, the user is invited to click through to a website in competition with Complainant. Respondent derives revenue from each click-through. The Panel therefore concludes that the Domain Name was registered and is being used in an intentional attempt to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s site.
Accordingly, the Panel finds that Policy paragraph 4(a)(iii) is 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 Domain Name be transferred to Complainant.
Robert A. Badgley
Sole Panelist
Dated: September 18, 2010
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