Complainant is Areva of Paris, France, represented by Dreyfus & associés, France.
Respondent is Domains by Proxy Inc. of Scottsdale, Arizona, United States of America; AIP of Denver, Colorado, United States of America. 2. The Domain Name and Registrar
The disputed domain name is which is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 4, 2011. On October 4, 2011, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On October 4, 2011, GoD, Inc. transmitted by email to the Center its verification response confirming that AIP 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 October 13, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 2, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 3, 2011. On November 18, 2011, the Center received a supplemental filing in which Complainant submits further observations and annexes. On the same date, the Center sent a communication to the parties informing the parties that the supplemental filing would be forwarded to the Panel, once appointed, for determination pursuant to its discretion.
The Center appointed Gerardo Saavedra as the sole panelist in this matter on November 21, 2011. This Panel finds that it was properly constituted. This 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 is a company incorporated under French laws with headquarters in Paris, France.
Complainant has rights over the AREVA trademark for which it holds several registrations: AREVA, registration No. 783282 with the World Intellectual Property Organization, registered in 2001, classes 1, 4, 6, 7, 9, 11, 19, 35, 36, 37, 38, 39, 40, 41 and 42; AREVA, registration No. 3061460 with the United States Patent and Trademark Office, registered in 2006, classes 1, 4, 6, 7, 9, 11, 19, 35, 36, 37, 38, 39, 40, 41 and 42.
Complainant owns several domain names incorporating the AREVA trademark, such as: created in 1998, created in 2002, and created in 2002.
The disputed domain name was created on November 4, 2010. 5. Parties’ Contentions A. Complainant
Complainant’s assertions may be summarized as follows:
Complainant is ranked first in the global nuclear power industry. It covers the entire nuclear cycle, from uranium mining to used fuel recycling, including reactor design and related services. It has a worldwide presence employing nearly 48,000 persons across the world. Further, Complainant is well-established in North America where it is present throughout the nuclear power cycle, employing approximately 6,000 persons in the United States of America in 45 sites, both industrial and commercial. Complainant and its trademark AREVA enjoy a worldwide reputation.
The disputed domain name resolves to the website of “Areva Investment Partners” related to advancing technological solutions in the life sciences and renewable energy industries, established at Colorado, United States. The website at the disputed domain name used to include a link to Complainant’s website and the mention “Areva Investment Partners (AIP) was formed as an independent investment and business management entity of AREVA” (printout attached to the Complaint).
Complainant conducted some searches on the company “Areva Investment Partners”. However, (i) no records were found for it and grammatical derivatives thereof on the Securities and Exchange Commission filings; (ii) no business name for it was found on the database of the Secretary of State of Colorado; (iii) no records were found for it with the Delaware Division of Corporation and the Secretary of State of Nevada, where such entity could have registered a limited liability company or a limited partnership; (iv) no records were found for it as either debtor or secured party among Uniform Commercial Code filings; (v) the telephone number indicated on the website of the disputed domain name corresponds to a pre-paid cellular telephone service.
Complainant attempted to contact Respondent via post and email requesting explanation about the use of the mark AREVA and the representation of association with Complainant. However, Complainant received no reply. Complainant sent a cease-and-desist letter on April 8, 2011 to Domains by Proxy, Inc., the registrant of the disputed domain name on online WhoIs database. Domains by Proxy, Inc. replied they had forwarded Complainant’s cease-and-desist letter to their customer and requested their client to contact Complainant. Since their client did not contact Complainant, Domains by Proxy, Inc. provided Complainant with the name and contact details of the actual registrant of the disputed domain name, i.e. AIP, with the same address that “Areva Investment Partners”.
The disputed domain name is identical or at least confusingly similar to Complainant’s trademark AREVA. Indeed, the disputed domain name reproduces Complainant’s trademark in its entirety.
Complainant’s trademark is well-known worldwide and will thus be easily identified as the dominant part of the disputed domain name. The mere adjunction of the generic term “partners” in the disputed domain name is not sufficient to distinguish the latter from Complainant’s trademark. Moreover, that addition maintains likelihood of confusion in the mind of Internet users since they may wrongly believe that the disputed domain name is closely linked to Complainant and its business partners.
Complainant has used the trademark AREVA in connection with a wide variety of products and services relating to production and distribution of energy in the United States and around the world. Consequently, the public has learned to perceive the goods and services offered under said mark as being those of Complainant. As a result, the public would reasonably assume that the disputed domain name is related to Complainant or owned by Complainant.
Respondent has no rights or legitimate interests in respect of the disputed domain name. Respondent is not affiliated with Complainant in any way, nor has Respondent been authorized by Complainant to use and register Complainant’s AREVA trademark, or to seek registration of any domain name incorporating said trademark.
The numerous registrations of the AREVA trademark together with the presence of Complainant in the United States long preceded the registration of the disputed domain name.
The disputed domain name is so identical to Complainant’s well-known trademark AREVA that Respondent cannot reasonably pretend it was intending to develop a legitimate activity through the disputed domain name.
Respondent is not commonly known by the name “Areva”. Further, Complainant conducted some searches but did not find any evidence of the existence of the company “Areva Investment Partners”, no records were found for this entity on databases dedicated to businesses or corporations. In light of these elements, Complainant calls into the question the existence of “Areva Investment Partners”. Thus the disputed domain name is not used in connection with a bona fide offering of goods and services.
The disputed domain name’s website was claiming an affiliation with Complainant with the indication that “Areva Investment Partners (AIP)” was formed as an independent investment and business management entity of Complainant. No legitimate offer of goods and services appears possible with such an assertion while that company is not related to Complainant.
The disputed domain name was registered and is being used in bad faith.
It is implausible that Respondent was unaware of Complainant when it registered the disputed domain name. The disputed domain name’s website used to include a reference to Complainant and a link to Complainant’s official website. The company presented on such website alleges to provide services in the field of energy. It thus appears obvious that Respondent had knowledge of Complainant and its trademark AREVA when Respondent registered the disputed domain name.
In any event, Complainant is well-known throughout the world, including in the United States, where “Areva Investment Partners” allegedly has its head office.
Many UDRP decisions have considered that Complainant’s AREVA trademark is well-known, making it unlikely that Respondent was not aware of Complainant’s proprietary rights in said trademark. A quick AREVA 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. Moreover, a simple search via Google or any other search engine using the keyword Areva shows that all of the first results relate to Complainant’s.
The use of the disputed domain name suggests that Respondent was perfectly aware of Complainant and its AREVA trademark. The disputed domain name resolves to a website presenting a company called “Areva Investment Partners”. That website used to display a mention referring to an affiliation with Complainant while Respondent is not affiliated to Complainant. In any event, such website is dedicated to energy which is Complainant’s core business. Internet users are thus likely to belive this website belongs to Complainant or is affiliated to Complainant. This misrepresentation to Internet users of an affiliation with, or endorsement by, the Complainant is a clear evidence of bad faith in the use of the disputed domain name.
Respondent appears to have attempted to dissimulate its true identity using a proxy service for registering the disputed domain name, a domiciliation service for the company “Areva Investment Partners” whose existence is doubtful.
Bad faith has already been found where a domain name is so obviously connected with a well-known trademark that its very use by someone with no connection to the trademark suggests opportunistic bad faith. A finding of bad faith can also 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. 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, through the creation of confusion.
Complainant requests that the disputed domain name be transferred to Complainant. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the 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”.
The Center received a supplemental filing from Complainant on November 18, 2011. The Rules do not explicitly provide for supplemental filings. Paragraph 10 of the Rules enjoins the panel to conduct the proceeding “with due expedition” and empowers the panel to “determine the admissibility, relevance, materiality and weight of the evidence”. In this case, this Panel has decided not to take into account such supplemental filing since it does not change the substance of the litis and material evidence already in the file. In any event, if this Panel had taken into consideration such supplemental filing, that would not have changed the outcome of this proceeding.
As regards who is the proper Respondent in this case, pursuant to paragraph 1 of the Rules “Respondent means the holder of a domain-name registration against which a complaint is initiated”. The Complaint filed with the Center on October 4, 2011, named both Domains by Proxy, Inc. and AIP as respondent, although it clarified that, based on communications between Complainant and Domains by Proxy, Inc., the latter was providing a proxy service to AIP. A printout of the corresponding WhoIs attached to the Complaint, dated October 3, 2010 showed Domains by Proxy, Inc. as the registrant of the disputed domain name. At the Center’s request, the Registrar sent its registrar verification on October 4, 2011, confirming AIP as the sole registrant of the disputed domain name. Since the concerned registrar confirmed in due course the name of the holder of the disputed domain name, in this case, this Panel decides to have AIP as the proper respondent and thus further references to Respondent herein should be understood to AIP1.
The lack of response from Respondent does not automatically result in a favorable decision for Complainant2. The burden for Complainant, under paragraph 4(a) of the Policy, is to show: (i) that the disputed domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) that Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
It is undisputed that Complainant has rights over the AREVA trademark.
The disputed domain name entirely incorporates the AREVA trademark, along with the addition of the generic term “partners” with a dash in between.
It is clear that the distinctive element in the disputed domain name is Complainant’s AREVA trademark. The addition of the “-partners” suffix is not enough to avoid similarity, nor does it add anything to avoid confusion. Prior UDRP decisions support this Panel’s view (see Nokia Corporation v. N a.k.a. IBCC,WIPO Case No. D2000-0102; AREVA v. MIC / Hussain, Syed,WIPO Case No. D2010-1098; Intel Corporation v. Pentium Capital,WIPO Case No. D2011-0638).
Therefore, this Panel finds that the disputed domain name is confusingly similar to Complainant’s AREVA trademark. B. Rights or Legitimate Interests
Complainant has alleged and Respondent has failed to deny that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant asserts that it has never licensed or authorized Respondent neither to register a domain name incorporating the AREVA trademark nor to make any use of it. Further, Complainant states that Respondent has no affiliation whatsoever with Complainant, and that Respondent is not commonly known by such trademark.
It is clear that Respondent registered the disputed domain name years after Complainant established rights in its AREVA trademark. Further, it is undisputed that Complainant’s trademark is well known internationally and that Complainant has an important presence in the United States where Respondent appears to be domiciled.
The fact that the website associated to the disputed domain name features a company called “Areva Investment Partners” does not necessarily mean that Respondent is commonly known as “Areva”. Complainant asserts that it conducted several searches on Respondent and did not find any evidence or reference whatsoever leading to the existence of Respondent, thus questioning the real existence of Respondent.
The unauthorized appropriation of another’s trademark in a domain name and the commercial use of the corresponding website cannot confer rights or legitimate interests upon Respondent (see Hoffmann-La Roche Inc. v. Aneko Bohner,WIPO Case No. D2006-0629).
Complainant provided evidence that the website associated to the disputed domain name had a link to Complainant’s official website, at the same time that it showed a statement indicating that Respondent was formed as an independent investment and business management entity of Complainant, which Complainant denies. It may be validly inferred that Respondent is taking advantage of Complainant’s reputation with the purpose of diverting Internet users to its own website unrelated to Complainant’s official website. Such use of Complainant’s trademark by Respondent does not establish rights or legitimate interests of Respondent in the disputed domain name (see Mpire Corporation v. Michael Frey,WIPO Case No. D2009-0258).
Respondent did not file any response to the Complaint and thus it is not possible to know how Respondent ended choosing the disputed domain name which entirely incorporates Complainant’s trademark, and including in the website associated to it a statement leading to believe that it is somewhat associated to Complainant. In this Panel’s view, the lack of response is also indicative that Respondent either has no interest in the disputed domain name or lacks arguments and evidence to support its holding of the disputed domain name.
This Panel considers that Complainant has established prima facie that Respondent has no rights or legitimate interests in the disputed domain name3.
Thus this Panel finds that Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Complainant contends that Respondent’s registration and use of the disputed domain name is in bad faith.
All evidence in the file, in this Panel’s view, indicates that Respondent should have been fully aware of the existence of Complainant and Complainant’s AREVA trademark at the time it obtained the registration of the disputed domain name.
Taking into consideration Complainant’s international presence (and particularly in the United States where Respondent appears to be domiciled) and the content of the website associated to the disputed domain name which included a link to Complainant’s website and where Respondent appears to be engaged in a field of activities very similar to Complainant’s, this Panel considers that in using the disputed domain name Respondent has sought to take advantage of, and create a likelihood of confusion with Complainant and its AREVA trademark as to the source, sponsorship, affiliation or endorsement of such website. Such use constitutes an improper use of Complainant’s trademark and is indicative of Respondent’s bad faith.4
Further, Respondent’s failure to reply to Complainant’s cease and desist letters is also indicative of bad faith (see Ebay Inc. v. E and Tony Caranci,WIPO Case No. D2000-1632). Such finding is still valid even where a privacy protection service is provided by a third party, since such third party provider would be expected to forward such cease and desist letters to its principal (i.e. the underlying registrant), which appears to be the case here since Complainant submitted evidence showing that Domains by Proxy, Inc. asserted having forwarded to Respondent such communications.
In light of the above, this Panel finds that Complainant has satisfied paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, this Panel orders that the disputed domain name, , be transferred to Complainant.
Gerardo Saavedra
Sole Panelist
Dated: December 5, 2011
1 The use of privacy service providers, the disclosure of underlying registrants and the determination of the proper respondent have been dealt with in several panel decisions. For instance, see The iFranchise Group v Jay Bean / MDNH, Inc. / Moniker Privacy Services [23658],WIPO Case No. D2007-1438; and Costco Wholesale Corporation and Costco Wholesale Membership, Inc., v Yezican Industries and Domains By Proxy, Inc.,WIPO Case No. D2007-0638.
2 See Berlitz Investment Corp. v. Stefan Tinculescu,WIPO Case No. D2003-0465: “the panel finds that as a result of the default, Respondent has failed to rebut any of the factual assertions that are made and supported by evidence submitted by Complainant. The panel does not, however, draw any inferences from the default other than those that have been established or can fairly be inferred from the facts presented by Complainant and that, as a result of the default, have not been rebutted by any contrary assertions or evidence”.
3 See Intocast AG v. Lee Daeyoon,WIPO Case No. D2000-1467: “For methodical reasons it is very hard for the Complainant to actually prove that Respondent does not have rights or legitimate interests in respect of the domain name, since there is no strict logical means of verifying that a fact is not given... Many legal systems therefore rely on the principle negativa non sunt probanda. If a rule contains a negative element it is generally understood to be sufficient that the complainant, by asserting that the negative element is not given, provides prima facie evidence for this negative fact. The burden of proof then shifts to the respondent to rebut the complainant’s assertion”. See Casio Keisanki Kabushiki Kaisha (Casio Computer Co., Ltd.) v. Jongchan Kim,WIPO Case No. D2003-0400: “There is no evidence that the Complainant authorized the Respondent to register the disputed domain name or to use the CASIO trademark, with or without immaterial additions or variants. These circumstances are sufficient to constitute a prima facie showing by the Complainant of absence of rights or legitimate interest in the disputed domain name on the part of the Respondent”.
4 See Bartercard Ltd & Bartercard International Pty Ltd . v Ashton-Hall Computer Services,WIPO Case No. D2000-0177: “the Domain Name has been used to host a website offering competing products to those offered by the Complainant... this suggests that the Respondent registered the Domain Name with the primary intention of disrupting the business of a competitor... It also indicates that the Respondent has used the Domain Name to attract Internet users to its website for commercial gain by virtue of confusion with the Complainant’s mark... Under the Policy, both of these are sufficient to show registration and use of the Domain Name in bad faith”.
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