The Complainant is The Rueducommerce Company of Saint Ouen, France, represented by CHAIN Association d'Avocats, France.
The Respondent is Purple Bucquet Purple of Panama City, Panama / PrivacyProtectorg, Domain Admin of Moergestel, Netherlands. 2. The Domain Name and Registrar
The disputed domain name is registered with Power Brand Center LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 29, 2010. On September 29, 2010, the Center transmitted by email to Power Brand Center LLC.
a request for registrar verification in connection with the disputed domain name. Following several reminders Power Brand Center LLC, transmitted by email to the Center on October, 2010 a partial verification response with confirmation that the disputed domain name would remain under registrar “lock” throughout the pendency of the administrative proceeding and stating that “the privacy shield had been removed pending the outcome of this proceedings”. The Center sent an email communication to the Complainant on October 4, 2010 providing the registrant and contact information in the WhoIs database of the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on October 7, 2010.
The Center verified that 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 Respondent of the Complaint, and the proceedings commenced on October 8, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 28, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 2, 2010.
The Center appointed J. Nelson Landry as the sole panelist in this matter on November 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 Complainant was created as a French company in 1999 and has registered several trademarks incorporating the terms Rue du Commerce in France, one containing the said terms as early as June 27, 2000, in association with several classes of goods and services, namely 9, 16, 28, 35, 38, 41, and 42 and also in France the trademark WWW.RUEDUCOMMERCE.COM in July 2005 in association with the same classes (herein “the Trademarks”). Furthermore the Complainant has applied for the Community Trademarks RUE DU COMMERCE.COM in May 2009, however these applications appear to be under opposition.
The Complainant is a major e-merchant in France which operates under the two domain names and and has been on the Paris Stock Exchange since 2005 and has, in 2009, generated a business in excess of EURO 300 million.
The disputed domain name was registered on May 28, 2006, in the name of PrivacyP with an address in the Netherlands.
Upon visiting the website at the “www.”, the Internet visitor will see a page in the French language which has ten categories of headings to related searches five, of which are in the French language (such as “Ordinateur Portable”, “Magasin En Ligne”, “Chaussures Femme”, “Chaussure and, Achat de Pc Portable” along with others in the English language. The category “Ordinateur Portable” and “Chaussures de Femme” correspond exactly to the same categories in the Complainant’s website. Furthermore, the links for each category, irrespective of the language, redirect the Internet visitor to websites of competitors of the Complainant.
The Complainant has attempted several times in May and June 2010 by mail delivery and e-mail to contact the Respondent and obtain the identity of the Registrant from the Registrar but without success. After some difficulties the name of the Respondent Purple Bucquet was finally disclosed by the Registrar to the Center on September 29, 2010 and the latter related the information to the counsel for the Complainant.
The Complainant does not have any business relationship with the Respondent and has never authorized the latter to use its registered Trademarks. 5. Parties’ Contentions A. Complainant
The Complainant submits that it has rights in the registered Trademarks RUEDUCOMMERCE which it uses and that the disputed domain name differs only by the missing letter “o”; this being the only difference along with the gTLD “.com” and that the adoption of this disputed domain name is clearly aiming at creating confusion among Internet users. The Complainant further submits that the confusion is further confirmed by the presence on the Respondent’s website of several categories of products corresponding to those of the Complainant on its own website.
Secondly, the Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name since there is no business relationship between the parties and no authorization by the Complainant for any use of its registered Trademarks.
Furthermore, the Complainant contends that there is no evidence of the Respondent’s use of, or demonstrable preparation to use the disputed domain name with a bona fide offering of goods or services.
Thirdly, the Complainant contends that the domain name was only registered in order to benefit from the fame of the Complainant on the Internet and to reach its clients therefore amounting to a registration in bad faith.
The Complainant further contends that the website of the Respondent is a parking page wherein it has no legal right to use the Trademarks of the Complainant and that such use again is clearly in bad faith in maintaining the disputed domain name to the benefit of the Respondent. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires that a complainant prove each of the following three elements in order for a domain name to be cancelled or transferred:
(i) The domain name registered by the respondent 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 interest 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
It is clear to the Panel that the Complainant has rights in its registered Trademarks containing the terms “RUE DU COMMERCE”, which have been registered in 2000 and 2005 and used extensively by the Complainant prior to the registration of the disputed domain name. It is well established in UDRP decisions that the difference of omitting one letter of a trademark in a domain name amounts to the presence and use of a domain name confusingly similar to the registered Trademarks of the Complainant and there are also numerous UDRP decisions wherein the panel has held that the addition of the gTLD suffix “.com” does not avoid confusion, see Accor v. Noldc Inc.,WIPO Case No. D2005-0016 and Alstom v. Itete Peru S.A.,WIPO Case No. D2009-0877. B. Rights or Legitimate Interests
The Respondent has not filed any Response in this proceeding. Therefore the Panel may accept all reasonable inferences and allegations included in the Complaint as true. The Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name by stating that the Respondent has never been known by the disputed domain name and is not making a legitimate noncommercial or fair use of the disputed domain name. Furthermore, the Complainant has never given a license nor in any way authorized the Respondent to make use of the Complainant’s Trademarks. There is no evidence that the Respondent has ever engaged in any legitimate business under “rue du commerce” or the Complainant’s Trademarks. It has been held by panels in UDRP decisions that such lack of justification from the Respondent allows inferring that the later has no legitimate interest or rights in the said domain name. See Countrywide Financial Corporation, Inc. and Countrywide Home Loans, Inc. v. Marc Bohleren,WIPO Case No. D2005-0248 and Pavillion Agency, Inc. v. Gereenhouse Agency Ltd.,WIPO Case No. D2000-1221.
Considering the absence first of any business relationship between the Complainant and the Respondent second, the lack of authorization by the Complainant to authorize the use of its registered Trademarks by the Respondent, and third the lack of evidence from the Respondent, in particular of any use or demonstration of preparation to use the disputed domain name in connection with a bona fide offering of goods or services, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name in the present circumstances and evidence.
The second criterion has been met. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:
(i) circumstances indicating that you 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 the 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 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 your website or location or of a product or service on your website or location.
It should be noted that the circumstances of bad faith are not limited to the above.
The Complainant has shown by its six years of extensive use of its registered Trademarks prior to the creation of the disputed domain name in 2006 and thereafter that it has acquired significant goodwill associated with its registered Trademarks as illustrated by its volume of business. The registration of the disputed domain name wherein the sole difference is in the absence of the letter “o”, and the use of the French language in the Respondent’s website, are clear indications of the awareness of the existence of the Complainant’s registered Trademarks by the Respondent. This, in the Panel’s view, is not a coincidence but rather an indication of a clear attempt by the Respondent at capitalizing on the goodwill associated with the registered Trademarks of the Complainant. Additionally, it has been, held in previous UDRP decisions that the use of a privacy service by the Respondent provides further evidence that the disputed domain name was registered in bad faith. See Lancôme Parfums et Beauté et Compagnie, Laboratoire Garnier et Compagnie, L’Oreal SA, l’Oreal USA Creative v. Therese Kerr,WIPO Case No. D2008-1748 and Ustream RV, Inc v. Vertical Axis, Inc.,WIPO Case No. D2008-0598. The Panel finds that the disputed domain name was registered in bad faith.
The presence of bad faith is further confirmed by the evidence of a visit to the website under the Respondent’s address and the observation that the first four categories of products are identical to those of the Complainant are displayed in the French language, and the presence of links redirecting the Internet visitors to websites of competitors of the Complainant via such categories as “Ordinateur Portable” and “Chaussures Femme”. The fact that the Respondent is using a postbox address in the Netherlands with a website written in French clearly indicates that French Internet users, potentially clients or visitors looking for the Complainant’s website, are targeted and redirected to competitors of the Complainant, thus generating financial benefit for the Respondent. This behavior, in this Panel’s view, is also one characterizing bad faith as it has been held in Alstom v . FM Laughna,WIPO Case No. D2007-1736.
In the present circumstances, the use of a privacy service by the Respondent associated with the serious difficulties that the Complainant encountered in attempting to adequately identify the Respondent corroborates, in this Panel’s view, an attitude of bad faith throughout registration and use of the disputed domain name.
The Panel finds that the disputed domain name has been registered in bad faith and is being used in bad faith.
The third criterion has been met. 7. Decision
The Panel concludes that:
(a) the domain name is confusingly similar to the Complainant’s Trademarks;
(b) the Respondent has no rights or legitimate interest in the disputed domain name;
(c) the disputed domain name has been registered in bad faith and is being used in bad faith.
Therefore, for all the foregoing reasons, in accordance with Paragraphs 4(a) and 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
J. Nelson Landry
Sole Panelist
Dated: November 22, 2010
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