Complainant is Europages of France, represented by DS Avocats, France.
Respondent is Match Domains LLC, Domain Admin of Germany. 2. The Domain Name and Registrar
The disputed domain name is registered with Gal Communications (CommuniGal) Ltd. d/b/a Galcomm. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 8, 2011. On July 11, 2011, the Center transmitted by email to Gal Communications (CommuniGal) Ltd. d/b/a Galcomm a request for registrar verification in connection with the disputed domain name. On July 18, 2011, Gal Communications (CommuniGal) Ltd. d/b/a Galcomm transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on July 18, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was August 7, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 8, 2011.
The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on August 12, 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
The Complainant, Europages is active in directories and mailing lists publishing on the French and European markets. The Complainant is the holder of a number national, international and community trademarks consisting of the words “europages” or “euro pages”. Complainant shows to be the holder of the following EUROPAGES and EURO PAGES trademarks:
EUROPAGES, registered as a French trademark under number 1 224 050 on December 31, 1982 and duly renewed;
EUROPAGES, registered as a French trademark under number 94 502 675 on January 21, 1994 and duly renewed;
EUROPAGES, registered as a French trademark under number 08 3 547 846 on January 9, 2008;
EURO PAGES, registered as an international trademark under number 626 221 on July 15, 1994 and duly renewed;
EURO PAGES, registered as an international trademark under number 997 015 on June 23, 2008;
EUROPAGES, registered as a Community Trademark under number 6 567 614 on January 9, 2008.
It is stated in the WhoIs records that Match Domains LLC., Respondent in the instant case, is the current holder of the disputed domain name , registered with Gal Communications (CommuniGal) Ltd. d/b/a Galcomm on September 22, 2001.
The disputed domain name redirected to a parking page providing sponsored links. On May 3, 2011 Complainant sent a cease-and-desist letter to Respondent to which the latter never responded.
On July 8, 2011, Complainant filed the Complaint with the Center, requesting the transfer of the disputed domain name. 5. Parties’ Contentions A. Complainant
Complainant considers the disputed domain name to be identical to the trademarks and service marks in which it claims to have rights. Complainant further claims that Respondent has no rights or legitimate interests in respect of the disputed domain name. According to Complainant, Respondent has chosen the disputed domain name in spite of and with full knowledge of the existence of Complainant’s marks and trade name. Complainant considers the use of the disputed domain name to be immediately damaging to Complainant by the confusion created with the public. Therefore, Complainant considers that the disputed domain name was registered and is being used in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
The onus is on Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that Complainant must show that all three elements set out in paragraph 4(a) of the Policy have been established before any order can be made to transfer the disputed domain name. As the proceedings are civil, the standard of proof is the balance of probabilities.
Thus, for Complainant to succeed, it must prove, within the meaning of paragraph 4(a) of the Policy and on the balance of probabilities that:
1. The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
2. Respondent has no rights or legitimate interests in respect of the disputed domain name; and
3. The disputed domain name has been registered and is being used in bad faith.
The Panel will therefore deal with each of these requirements in turn. A. Identical or Confusingly Similar
Complainant must first establish that there is a trademark or service mark in which it has rights. Since Complainant is the holder of various EUROPAGES trademarks for its directories and mailing lists publishing activities, it is clearly established that there is a trademark in which Complainant has rights.
The test for identity or confusing similarity under the first element of the Policy is a direct comparison between the disputed domain name and the trademark at issue (AIDA Cruises German Branch of Società di Crociere Mercurio S.R.L. v. , Ltd,WIPO Case No. D2008-0110). The disputed domain name incorporates the EUROPAGES trademark entirely, without any addition. Hence, the Panel considers the disputed domain name to be identical to Complainant’s EUROPAGES trademark. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, Complainant has the burden of establishing that Respondent has no rights or legitimate interests in respect of the disputed domain name.
It is established case law that it is sufficient for Complainant to make a prima facie showing that Respondent has no rights or legitimate interests in the disputed domain name in order to place the burden of rebuttal on Respondent. (See: Champion Innovations, Ltd. v. Udo Dussling (45FHH),WIPO Case No. D2005-1094; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110).
The Panel notes that Respondent has not been commonly known by the disputed domain name and that Respondent has not acquired trademark or service mark rights in that name. Respondent’s registration and use of the disputed domain name were not authorized by Complainant. There are no indications that a connection between Complainant and Respondent exists.
Furthermore, Respondent did reply neither to Complainant’s cease-and-desist letter, nor to the Complaint. According to the Panel, the fact that Respondent did not avail itself of its right to respond to the Complaint further indicates that Respondent has no rights or legitimate interests in the disputed domain name (See Nordstrom, Inc. and NIHC, Inc. v. Inkyu Kim,WIPO Case No. D2003-0269). C. Registered and Used in Bad Faith
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and that it is being used in bad faith (See e.g. Telstra Corporation Limited v. Nuclear Marshmallow,WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd,WIPO Case No. D2006-1052). Bad faith registration
In the instant case, Respondent most likely had knowledge of Complainant’s rights in the EUROPAGES trademark, given the continuous use by Complainant of its trademark in various countries and the fact that the disputed domain name is identical to Complainant’s EUROPAGES trademark. This alone makes it conceivable that Respondent had knowledge of the EUROPAGES trademark at the moment of registration of the disputed domain name.
Besides, the Panel is of the opinion that the failure to participate in the proceeding under the present circumstance can be suggestive of bad faith registration and use and a lack of rights or legitimate interests in the disputed domain name (See e.g., Mars, Incorporated v. Vanilla, Ltd.,WIPO Case No. D2000-0586; GasBuddy Organization, Inc. v. Whois Protection Service LLC,WIPO Case No. D2009-0607).
Respondent had the opportunity to explain why it registered the disputed domain name in 2001 incorporating the trademark of the Complainant but has chosen not to file a Response. Bad faith use
Furthermore, the disputed domain name resolves to a parking page providing sponsored links. This use of a domain name can constitute bad faith use, especially when combined with other factors such as respondent preventing a trademark or service mark holder from reflecting its mark in a corresponding domain name, the failure of respondent to respond to the complaint, the absence of any good faith use, etc. (See e.g., Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003 ; Myer Stores Limited v. Mr. David John Singh,WIPO Case No. D2001-0763 ).
In the instant case, there is no sign of any good faith use in relation to the disputed domain name. Furthermore, Respondent failed to reply to Complainant’s cease-and-desist letter and to the Complaint. Accordingly, these elements evidence the bad faith registration and use of the disputed domain name. 7. Decision
For 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 Complainant.
Flip Jan Claude Petillion
Sole Panelist
Dated: August 25, 2011
Full & Egal Universal Law Academy