Complainant is VIVENDI, of Paris, France, represented by Dreyfus & associés, France.
Respondent is Private Registrant/ Mr. Arshad Mohamed of Mangalore, India. 2. The Domain Name and Registrar
The disputed domain name is registered with New Dream Network, LLC dba DreamH. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 27, 2011. On January 28, 2011, the Center transmitted by email to New Dream Network, LLC dba DreamH a request for registrar verification in connection with the disputed domain name(s). On February 1, 2011, New Dream Network, LLC dba DreamH 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 Complainant on February 1, 2011 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on February 4, 2011.
The Center verified that the Complaint together with the amendment to the 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 February 7, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was February 27, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on February 28, 2011.
The Center appointed Ross Carson as the sole panelist in this matter on March 9, 2011. 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
Complainant, a company incorporated in France, carries on business around the world. As of September 1, 2010, Complainant employs 49,000 persons in the world and has revenues amounting to 13,982 million euros. Complainant and it’s associated entities include the world leader in video games (Activision Blizzard), the world leader in music (Universal Music Group), the French leader in alternative telecoms (SFR), the Moroccan leader in telecoms (Maroc Telecom Group), the leading alternative telecoms provider in Brazil (GVT) and the French leader in pay-TV (Canal + Group). Complainant is the first operator to launch ADSL TV in Africa, where operations continue to grow. Moreover, Maroc Telecom Group is present in Morocco, Mauritania, Burkina Faso, Gabon and Mali.
Complainant is the owner of numerous trademark registrations for or including the trademark VIVENDI registered in a wide range of classes. Complaint is the owner of the following trademark registrations for the trademark VIVENDI registered in France : No. 1617000, dated of September 25, 1990 and duly renewed, designating goods and services in classes 16, 28 and 35; No. 97694077, dated of September 8, 1997 and duly renewed, designating goods and services in classes 1, 6, 9, 11, 17, 19, 35, 36, 37, 38, 39, 40, 41 and 42; No. 98726148, dated of April 2, 1998 and duly renewed, designating goods and services in classes 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 42; No. 3409301, dated of February 10, 2006, designating goods and services in classes 9, 16, 25, 28, 35, 36, 38, 41 and 42 and No. 3410891, dated of February 17, 2006, designating services in classes 35 and 36.
Complainant is also the owner of United States Trademark Registrations for or including the trademark VIVENDI including: No. 3598577, dated of July 28, 2006 and designating goods and services in classes 9, 16, 28, 35, 36, 38, 41 and 42. Complainant is also the owner of the following Kuwait Trademark Registrations for the trademark VIVENDI: No. 79485, dated of September 9, 2006 and designating goods in class 9; No. 79487, dated of September 9, 2006 and designating goods in class 28; No. 79489, dated of September 9, 2006 and designating services in class 36; No. 79488, dated of September 9, 2006 and designating services in class 35; dated of September 9, 2006 and designating services in class 38; No. 79491, dated of September 9, 2006 and designating services in class 41and No. 79492, dated of September 9, 2006 and designating services in class 42.
Complainant is also the owner of many domain names incorporating it’s trademark VIVENDI including:
, , , and .
Respondent registered the disputed domain name on August 24, 2010. 5. Parties’ Contentions A. Complainant
A.1. Identical or Confusingly Similar
Complainant states that it’s trademark VIVENDI is widely used, registered in many countries, and well-known throughout the world in association with the creation, editing, assembly and distribution of high quality digital content as described in greater detail in Section 4 above.
Complainant submits that the disputed domain name is identical to Complainant’s trademark VIVENDI. Indeed, the disputed domain name reproduces Complainant’s trademark in its entirety. Previous UDRP panels have considered Complainant’s trademark VIVENDI to be well-known, Vivendi Universal v. Mr. Jay David Sallen and GO247.COM, INC.,WIPO Case No. D2001-1121and Vivendi S.A., The Seagram Company Ltd., Joseph E. Seagram & Sons, Inc., Universal Studios, Inc., and Universal City Studios, Inc. v. Yu Fu Zhao (aka Tyou Star),WIPO Case No. D2000-0717.
Complainant further submits that in many WIPO decisions, the Panel considered that the incorporation of a trademark in its entirety in a disputed domain name may be sufficient to establish that a domain name is identical or confusingly similar to Complainant’s registered mark. See, RapidShare AG, Christian Schmid v. InvisibleR, Domain Admin,WIPO Case No. D2010-1059.
Complainant states that the disputed domain name features the acronym “mena,” added to Complainant’s trademark VIVENDI. According to Wikipedia, “mena” is an acronym often used in academic and business writing which generally covers a vast region extending from Morocco in northwest Africa to Iran in southwest Asia, and which generally includes all the Middle East and North Africa countries. In accordance with the prevailing case law, the addition of descriptive terms or acronyms is not a distinguishing feature, Sanofi-Aventis, Aventis Pharma SA v. Rear View Photograph Ltd.,WIPO Case No. D2005-0625 and Aventis, Aventis Pharma SA. v. Dac Hung Nguyen, WIPO Case No. D2004-0252. Thus, the acronym “mena” should not be taken into account to appreciate the identity or similarity between Complainant’s trademark and the disputed domain name.
Complainant further submits the extension “.com” is not to be taken into consideration when examining the identity or similarity between the Complainant’s trademark and the disputed domain name, Accor v. Noldc Inc.,WIPO Case No. D2005-0016. The mere adjunction of a gTLD such as “.com” is irrelevant because it is well established that the generic Top Level Domain is insufficient to avoid a finding of confusing similarity Titoni AG v Runxin Wang, WIPO Case No. D2008-0820 and Alstom v. Itete Peru S.A., WIPO Case No. D2009-0877.
Complainant submits that it has used the trademark VIVENDI in connection with a wide variety of products and services around the world. Consequently, the public has learned to perceive the goods and services offered under this mark as being those of Complainant. Therefore, the public would reasonably assume that the disputed domain name would be owned by Complainant or at least assume that it is related to Complainant. As a result, it clearly appears that the disputed domain name is identical to Complainant’s trademark VIVENDI. This creates a high likelihood of confusion.
A.2. No Rights or Legitimate Interests in respect of the Domain Name
Complainant states that Respondent is not affiliated with Complainant in any way, nor has it been authorized by Complainant to use and register its trademark VIVENDI as a domain name, or to seek registration of any domain name incorporating said trademark.
Complainant further states that Respondent has no prior rights or legitimate interest in the disputed domain name. The registration of the VIVENDI trademarks preceded the registration of the disputed domain name by many years.
Complainant submits that the disputed domain name is so identical to Complainant’s well-known VIVENDI trademarks that Respondent cannot reasonably pretend it was intending to develop a legitimate activity through registration and use of the disputed domain name .
Complainant further submits Respondent is not in any way affiliated with Complainant, nor authorized or licensed to use the VIVENDI trademark, or to seek registration of any domain name incorporating said mark. In previous decisions, Panels found that in the absence of any license or permission from the Complainant to use such widely-known trademarks, no actual or contemplated bona fide or legitimate use of the domain name could reasonably be claimed. See, LEGO Juris A/S v. DomainPark Ltd, David Smith, A Domain Privacy, Transure Enterprise Ltd, Host master,WIPO Case No. D2010-0138.
Complainant further submits Respondent is not commonly known by the name “vivendi”. After some research on “Vivendi Consulting MENA”, Complainant discovered that, according to the French Yellow Pages, the alleged company’s corporate headquarters indicated to be at La Défense in France did not exist. The alleged company is not even present on the French Commercial and Companies Register. Moreover, the telephone number associated with said corporate headquarters is inactive. Finally, in the “contact us” tab of Respondent’s website, no contact information is provided. In light of these elements, Complainant calls into the question the very existence of “Vivendi Consulting MENA.”
Complainant further submits that Respondent’s objective in choosing a domain name identical to Complainant’s trademark VIVENDI was likely to benefit from the trademark’s reputation. See, Dr. Ing. h.c. F. Porsche v. Lyn Davis, WIPO Case No. D2006-1098 and ACCOR v. Sergey Fomin,WIPO Case No. D2008-0706. Indeed, given the fame of Complainant’s trademark VIVENDI, Respondent could not have a legitimate contemplated use for offering goods or services in association with the disputed domain name. See, Sears, Roebuck and Co. v. Hanna Law Office,WIPO Case No. D2000-0669. Complainant submits that having regard to the recited facts, Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services.
Complainant further states that according to an online dictionary, the term “vivendi” has no meaning in English, the language of Registration Agreement.
Complainant further submits the use of a privacy service by Registrant to register should be regarded as an additional element indicating bad faith at the time Registrant acquired the disputed domain names, 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; Ustream.TV, Inc v. Vertical Axis, Inc., WIPO Case No. D2008-0598.
Complainant submits that for all of the above-cited reasons, it is undoubtedly established that Respondent has no rights or legitimate interests with respect to the disputed domain name under paragraph 4(a)(ii) of the Policy.
A.3. Registration in Bad Faith
Complainant submits that it is implausible that Respondent was unaware of Complainant when it registered the disputed domain name. Firstly, Complainant is well-known throughout the world, including in France, where “Vivendi Consulting Mena” allegedly has its main headquarters, in Kuwait, where H. E. is supposedly working from, in the United States, where the privacy service used by Respondent is located and in India, where Respondent seems to be located. Secondly, in many decisions, previous UDRP panels considered that Complainant’s VIVENDI trademarks are well-known, making it unlikely that Respondent was not aware of Complainant’s proprietary rights in said trademarks, see, Vivendi Universal v. Mr. Jay David Sallen and GO247.COM, INC., supra and Vivendi S.A., The Seagram Company Ltd., Joseph E. Seagram & Sons, Inc., Universal Studios, Inc., and Universal City Studios, Inc. v. Yu Fu Zhao (aka Tyou Star) (‘’ Zhao’’ ), supra.
Complainant further submits that In light of the reputation of Complainant‘s trademark VIVENDI, Respondent’s reproduction of the trademark in its entirety clearly proves that Respondent was aware of the existence of Complainant’s trademark. It has been held in previous cases that knowledge of a corresponding mark at the time of the domain name’s registration suggests bad faith, Caixa D’Estalvis I Pensions de Barcelona (“La Caixa”) v. Eric Adam,WIPO Case No. D2006-0464 and, Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
Complainant further states a quick VIVENDI trademark search reveals the existence of Complainant and its trademark. Respondent’s failure to engage in such a search is a contributory factor to its bad faith, Lancôme Parfums et Beauté & Cie, L’Oréal v. 10 Selling,WIPO Case No. D2008-0226. This is even more so when a Respondent knows how to search trademarks online, such as in this particular case.
Complainant further states that in Respondent’s January 5, 2011 letter, H. E. stated that he had found 69 trademarks incorporating the term “vivendi” on the French Trademark Database; therefore, he is familiar with trademark searches. Yet, he colluded in illegally registering the disputed domain name, or at least attempts to justify said registration.
Complainant submits that supposing that at the time of the disputed domain name’s registration Respondent was not aware of the possibility of searching trademarks online before registering a domain name, a simple search via Google or any other search engine using the keyword “vivendi” shows that all of the first results relate to Complainant’s products or news.
Complainant further submits that In this day and age of the Internet and advancement in information technology, the reputation of brands and trademarks transcends national borders. Taking into account the worldwide reputation of Complainant and its trademarks, as well as the high level of notoriety of Complainant, it is hard to believe that Respondent was unaware of the existence of Complainant and its trademarks at the time of registration of the disputed domain name.
A.4. Use in Bad Faith
Complainant submits that there is little doubt in this case that, at all times, Respondent was aware that VIVENDI enjoyed a substantial reputation worldwide. Yet, Respondent reproduced the well-known trademark in a domain name resolving to a website allegedly operated by “Vivendi Consulting MENA”, whose very existence is doubtful. According to the French Yellow Pages, the alleged company’s corporate headquarters indicated to be at La Défense in France do not exist and the telephone number associated with said headquarters is inactive. The alleged company is not even present on the French Commercial and Companies Register. According to information provided by the privacy shield service, Respondent Arshad Mohamed is located in India, a country where “Vivendi Consulting MENA” would have no presence and activity. No contact information is provided in the “Contact us” tab of Respondent’s website, and the person with whom Complainant corresponded keeps changing his last name. Indeed, this person’s email contact is […].A.@, yet, he signs “[…] E. ” in the December 13, 2010 communication and “[…] Sabbak” in the January 5, 2011 communication. In light of these elements, Complainant seriously calls in question the very existence of “Vivendi Consulting MENA”.
Complainant further submits that a finding of bad faith can be found where Respondent “knew or should have known” of Complainant’s trademark rights and nevertheless registered a domain name incorporating a mark in which he had no rights or legitimate interests, Accor S.A. v. Kristen Hoerl,WIPO Case No. D2007-1722 and Myer Stores Limited v. Mr. David John Singh, WIPO Case No. D2001-0763.
Complainant states that the disputed domain name is identical to Complainant’s trademark VIVENDI and previous UDRP panels have ruled that “a likelihood of confusion is presumed, and such confusion will inevitably result in the diversion of Internet traffic from Complainant’s site to Respondent’s site”, L'oreal SA v. 张容容, LinChaoJie, Guangxi NanNing IDEA Business Planning Co., Ltd, WIPO Case No. D2010-1318 and E, Inc. v. Triple E Holdings Limited,WIPO Case No. D2006-1095.
Complainant further states such use of the disputed domain name was not authorized by Complainant; in this respect, previous panels considered that in the absence of any license or permission from complainant to use widely known trademarks, no actual or contemplated bona fide or legitimate use of the domain name could reasonably be claimed, Alstom, Bouygues v. Webmaster, WIPO Case No. D2008-0281. It is more likely than not that Respondent’s primary motive in registering and using the disputed domain name was to capitalize on or otherwise take advantage of Complainant’s trademark rights, though the creation of initial interest confusion. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the domain name registered by Respondent 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.
The fact that Respondent did not submit a Response does not automatically result in a decision in favor of Complainant. The failure of Respondent to file a Response results in the Panel drawing certain inferences from Complainant’s evidence. The Panel may accept all reasonable and supported allegations and inferences following there from in the Complaint as true. Charles Jourdan Holding AG v. AAIM, WIPO Case No. D2000-0403. A. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy, Complainant must establish rights in a trademark and secondly that the disputed domain name is identical to or confusingly similar to the trademark in which Complainant has rights.
Complainant has established that it is the owner of numerous registered trademarks for and including VIVENDI registered in many countries throughout the world in relation to the goods and services described in section 4 above. Previous UDRP panels have considered Complainant’s trademark VIVENDI to be well-known. See, Vivendi Universal v. Mr. Jay David Sallen and GO247.COM, INC., supra, and Vivendi S.A., The Seagram Company Ltd., Joseph E. Seagram & Sons, Inc., Universal Studios, Inc., and Universal City Studios, Inc. v. Yu Fu Zhao (aka Tyou Star) (“Zhao”), supra. Complainant’s registered trademarks for or including VIVENDI were in use and registered many years prior to the date of registration of the disputed domain name on August 24, 2010.
The disputed domain name incorporate the entirety of Complainant’s trademark VIVENDI. Many UDRP decisions have found that domain names are confusingly similar to trademarks when the domain name incorporates the trademark in its entirety. See, e.g., PepsiCo. Inc. v. PEPSI SRl ,WIPO Case No. D2003-0696 (a domain name is "nearly identical or confusingly similar" to a complainant's mark when it "fully incorporate[s] said mark"; holding , , and other domains confusingly similar to complainant's PEPSI mark) and RapidShare AG, Christian Schmid v. InvisibleR, Domain Admin, WIPO Case No. D2010-1059.
The disputed domain name adds the descriptive acronym “mena” to Complainant’s trademark VIVENDI. According to Wikipedia, “mena” is an acronym often used in academic and business writing which generally covers a vast region extending from Morocco in northwest Africa to Iran in southwest Asia, and which generally includes all the Middle East and North Africa countries. In accordance with the prevailing case law, the addition of descriptive terms or acronyms is not a distinguishing feature, Sanofi-Aventis, Aventis Pharma SA v. Rear View Photograph Ltd., supra and Aventis, Aventis Pharma SA. v. Dac Hung Nguyen, supra. Thus, the acronym “mena” should not be taken into account to appreciate the identity or similarity between Complainant’s trademark and the disputed domain name.
The inclusion of the top level domain descriptor “.com” in the disputed domain name does not affect a finding of confusing similarity. Other UDRP panels have repeatedly held that the specific top level of the domain name such as “.org”, “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar (see Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr.,WIPO Case No. D2000-1525, holding that confusing similarity under the Policy is decided upon the inclusion of a trademark in the domain name; and Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429, finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Complainant has proven that the disputed domain name is confusingly similar to Complainant’s trademark for or including VIVENDI. B. Rights or Legitimate Interests
Pursuant to paragraph 4(a)(ii) of the Policy, Complainant must prove that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Respondent is not affiliated with Complainant and has never been authorized by Complainant to use Complainant’s registered trademark or any trademarks confusingly similar thereto. Previous UDRP panels have found that in the absence of any license or permission from complainant to use widely-known trademarks, no actual or contemplated bona fide or legitimate use of the domain name could reasonably be claimed. See, LEGO Juris A/S v. DomainPark Ltd, David Smith, A Domain Privacy, Transure Enterprise Ltd, Host master,WIPO Case No. D2010-0138.
Respondent has no prior rights or legitimate interest in the disputed domain name. The registration of the VIVENDI trademarks preceded the registration of the disputed domain name by many years.
Complainant asserts that it received an e-mail dated December 2, 2010 from Respondent promoting “Vivendi Consulting”, a strategy consulting office serving Kuwait, Qatar, United Arab Emirates, Baharain, Saudi Arabia and the Sultanate of Oman. The e-mail invited Complainant to go to the website “www.” for more information. A visit to the website presents “Vivendi Consulting Middle East North Africa”, which advertises that it “specializes in providing Strategic business advisory services in the Middle East and North Africa region and the wider Middle East North Africa (MENA} region”.
Complainant conducted a WhoIs search and found that the disputed domain name was registered on August 25, 2010 under the privacy service company of the Registrar DreamHost Web Hosting. The WhoIs search did not disclose the identity of the registrant of the disputed domain name.
Immediately upon receiving M. E. email of December 2, 2010, Complainant sent a cease-and-desist letter based on its trademark rights, asking M. E. to immediately cease any use of the trademark VIVENDI. On December 6, 2010, M. E. replied to Complainant, requesting Complainant to provide him with copy of a document establishing without a doubt that a trademark VIVENDI Consulting MENA was registered in Kuwait by VIVENDI UNIVERSAL. On December 15, 2010, Complainant sent a second cease-and-desist letter asking M. Alsabak, Vivendi Consulting, to immediately cease any use of the trademark VIVENDI as part of the disputed domain name and requesting the name of M. E.’s counsel for further communications, as required by French ethics law. On January 5, 2011, M. E. replied to Complainant, that he would not stop any commercial use of the trademark VIVENDI nor provide Complainant with the name of his counsel.
After the filing of the present Complaint, the true identity of the registrant of the disputed domain name was revealed by the Registrar DreamHost Web Hosting to be M. Mohamed. The Center was unable to serve M. Mohamed at the address in India provided for the Registrant. Complainant thinks that M. E. and M. Mohamed is the same person, as M. E. acts as if he was the owner of the disputed domain name having carried on all the correspondence with Complainant relating to the cease-and-desist letters concerning the disputed domain name and use of “Vivendi Consulting”. Furthermore, the person with whom Complainant corresponded in the cease-and-desist correspondence kept changing his last name. Indeed, this person’s email contact is […].alsabak@, yet, he signs “M. E.” in the December 13, 2010 communication and “M. Sabbak” in the January 5, 2011 communication.
In the information provided at the website “www.”, the address of the Corporate Headquarters for “Vivendi Consulting” is given as “Vivendi Consulting, BusinessCenter – La Defence, Nanterre 92000” and the telephone number is given as “Tel. 33155683648”. The Center was informed by the courier attempting to serve the amended Complaint on “Vivendi Consulting” that it could not locate such an address in Nanterre.
Complainant’s uncontested evidence is that after some research on “Vivendi Consulting MENA”, Complainant discovered that, according to the French Yellow Pages, the alleged company’s corporate headquarters indicated to be at La Défense in France did not exist. The alleged company is not even present on the French Commercial and Companies Register. Moreover, the telephone number associated with said corporate headquarters is inactive. Finally, in the “contact us” tab of Respondent’s website, no contact information is provided. In light of these facts Complainant calls into the question the very existence of “Vivendi Consulting MENA.”
The material associated with the website “www.’’ under the heading ‘’Our Leaders’’ includes the names and a biography of four persons based in the Middle East and North Africa. The first person named is M. E., Kuwait. One of the four named leaders is said to have previously served as a Lagardere’s managing director of corporate communications. A second named leader is said to be chairman of the Lagardere Idea Center that serves the firm’s think tank in the Middle East. Lagardere is a pure media group with headquarters in France, and is among the world leaders in the sector. The Lagardere Group recently announced the postponement of the sale of its stake in Group+ which is part of the Vivendi Group. The Panel finds that these two leaders who are or were formerly employed with Lagardere and M. E. who was born and educated in France must have been aware of Complainant , it’s well-known trademark VIVENDI, and the fact that Complainant had extensive business interests in the Middle East and North Africa before registration of the disputed domain name on August 24, 2010.
The Panel finds on a balance of probabilities that Respondent’s objective in choosing the disputed domain name confusingly similar to Complainant’s trademark VIVENDI was to benefit from Complainant’s trademark’s reputation. See, Dr. Ing. h.c. F. Porsche v. Lyn Davis, WIPO Case No. D2006-1098 and ACCOR v. Sergey Fomin, supra. Indeed, given the extensive goodwill of Complainant associated with it’s trademark VIVENDI, Respondent could not have contemplated legitimate use of the disputed domain name in association with business related consulting services. See, Sears, Roebuck and Co. v. Hanna Law Office,WIPO Case No. D2000-0669.
In a letter dated January 5, 2011 in response to a cease-and-desist letter from Complainant, M. Sabbak, Vivendi Consulting Mena alleged that the trademark VIVENDI was a generic term being a derivative of modus vivendi. M. Sabbak further noted that there were 69 marks or corporations on the register in France for Vivendi, 5 of which were not owned by Complainant. The Panel finds that Respondends remarks do not establish that Complainant’s trademark VIVENDI is generic. Further, this Panel has no jurisdiction to find that the multitude of Complainant’s registrarations for VIVENDI in France are invalid because a minority of others own a trademark for VIVENDI.
It is difficult for a complainant to prove the negative that a respondent does not have any rights or legitimate interests in a disputed domain name. Respondent was given the opportunity by way of reply to demonstrate any rights or legitimate interests in the disputed domain name pursuant to paragraph 4(c) of the Policy. Previous decisions under the UDRP have found it sufficient for a complainant to make a prima facie showing that a respondent does not have any rights or legitimate interests in the disputed domain name. Once this showing is made, the burden of proof shifts to respondent to demonstrate its rights or legitimate interests in the disputed domain name. Respondent did not file a Response nor avail itself of the benefits of paragraph 4(c) of the Policy.
The Panel finds that Complainant has proven on a balance of probabilities that Respondent does not have any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Pursuant to paragraph 4(a)(iii) of the Policy, Complainant must prove that the disputed domain name has been registered and used in bad faith. C. 1. Registered in Bad Faith
Complainant has established that it is the owner of numerous registered trademarks for and including VIVENDI in France, the United States of America and many other countries throughout the world in relation to the goods and services described in section 4 above.
Complainant, VIVENDI, a company incorporated in France, carries on business around the world. As of September 1st, 2010, Complainant employs 49,000 persons in the world and has revenues amounting to 13,982 million euros. Complainant and it’s associated entities include the world leader in video games (Activision Blizzard), the world leader in music (Universal Music Group), the French leader in alternative telecoms (SFR), the Moroccan leader in telecoms (Maroc Telecom Group), the leading alternative telecoms provider in Brazil (GVT) and the French leader in pay-TV (Canal + Group). Complainant is the first operator to launch ADSL TV in Africa, where operations continue to grow. Moreover, Maroc Telecom Group is present in Morocco, Mauritania, Burkina Faso, Gabon and Mali.
On the basis of the numerous facts recited in preceding Section 6.B. immediately above , the Panel finds that Respondent registered the disputed domain name on August 24, 2010 in bad faith with knowledge of Complainant’s rights in it’s well-known trademark VIVENDI. C.2. Domain Name Used in Bad Faith
Paragraph 4(b)(iv) of the Policy provides that using a domain name to intentionally attempt to attract Internet users to your website for commercial gain by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement of a respondent’s website constitutes evidence of bad faith use of a domain name.
Based on the facts recited in Section 6.B. above the Panel finds on a balance of probabilities that Respondent’s objective in choosing and using the disputed domain name confusingly similar to Complainant’s well-known trademark VIVENDI was to benefit from Complainant’s trademark’s reputation. See, Dr. Ing. h.c. F. Porsche v. Lyn Davis, supra and ACCOR v. Sergey Fomin, supra. Previous UDRP panels considered that Complainant’s VIVENDI trademarks are well-known, making it unlikely that Respondent was not aware of Complainant’s proprietary rights in said trademarks, See, Vivendi Universal v. Mr. Jay David Sallen and GO247.COM, INC., supra, and Vivendi S.A., The Seagram Company Ltd., Joseph E. Seagram & Sons, Inc., Universal Studios, Inc., and Universal City Studios, Inc. v. Yu Fu Zhao (aka Tyou Star) (‘’ Zhao’’ ), supra. The existence of the registrant of the disputed domain name M.Mohamed who allegedly resides in India remains unknown. India is outside the geographical area encompassed by the acronym MENA. The relationship of “Our Leaders” of Vivendi Consulting who use the disputed domain name to the registrant of the disputed domain name is unexplained. The address of the Corporate Headquarters of Vivendi Consulting is nonexistant. The telephone number of Vivendi Consulting is not connected. These omissions and facts support a finding of bad faith registration and use of the disputed domain name.
The Panel finds that Complainant has proven on a balance of probabilities that Respondent has used the disputed domain name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy, and that Complaint satisfies the requirement under paragraph 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.
Ross Carson
Sole Panelist
Dated: March 23, 2011
Full & Egal Universal Law Academy