The Complainant is Jardiland of Paris, France, represented by Cabinet Plasseraud, France.
The Respondent is Ayr Sha of Kazan, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 31, 2011. On October 31, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 1, 2011, the Registrar 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on November 16, 2011.
The Center verified that the Complaint together with 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 November 17, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was December 7, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 12, 2011.
The Center appointed Alvaro Loureiro Oliveira as the sole panelist in this matter on January 4, 2012. 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 is Jardiland, a French company widely known for products and services in the field of gardening, pets, decoration, garden lay-out and other related goods. The Complainant’s goods and services are identified by the trademark JARDILAND since 1982. The Complainant runs almost 200 stores under the trademark JARDILAND in Europe, mainly in France, Spain, Belgium, Switzerland and Portugal.
The Trademark JARDILAND is registered in France and in the European Community, covering all kinds of goods and services related to the Complainant’s core business. All registrations were granted way before the registration of the disputed domain name. Proofs of these registrations were duly presented.
According to the WhoIs information, the disputed domain name was created on September 19, 2011. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name bears its famous trademark JARDILAND, associated with the word “catalogue”, in a clear attempt to create confusion and mislead the consumers. The fact that the word “catalogue” is considered generic only enhances this intention.
The Complainant claims not to have any relationship with the Respondent or has never given the Respondent permission to use its mark or to apply it to any kind of domain name incorporating its mark.
The Complainant also states that the Respondent is not making a legitimate use of the referred disputed domain name. On the contrary, it alleges that the disputed domain name is being used to direct the consumers to the competitors of the Complainant, as well as offering goods under the mark JARDILAND that were not the original ones. Annex 7 of the Complaint brings a copy of the first version of the Respondent’s website, evidencing this allegation. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Policy, in its paragraph 4(a), determines that three elements must be present and duly proven by a complainant to obtain relief. These elements are:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect to the domain name; and
(iii) Respondent’s domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Regarding the first of the elements, the Panel understands that the Complainant presented relevant evidence to have rights on the mark JARDILAND, which is duly registered in the countries where the Complainant does business and consequently used regularly in those countries.
Further, the Panel finds that the disputed domain name, , indeed reproduces the mark and that the addition of the generic word “catalogue” is insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP (see paragraph 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0"). On the contrary, in the Panel’s view, this addition enhances the potential consumers’ confusion.
Hence, the Panel finds that the first of the elements is present in this dispute. B. Rights or Legitimate Interests
The Panel understands that the mark JARDILAND is undoubtedly linked to the Complainant, since it is not only registered as a mark in its name in many European countries, but it has also been used for almost 30 years to identify the Complainant’s business and goods.
The Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Respondent has not rebutted the Complainant’s contentions.
Besides, the Complainant provided enough evidence of the renown of its mark in Europe. Hence, the Panel understands that the Respondent could not be unaware of the mark and its direct relation to the Complainant.
Thus, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
It is clear to the Panel that the Respondent must have registered the disputed domain name with the purpose of taking advantage of the renown of the Complainant’s mark.
The Respondent is using the disputed domain name to attract consumers in the same field of the Complainant’s business, providing a series of links to several websites related to gardening, garden lay-out, interior/exterior decoration etc. In fact, apparently alerted by this Complaint, the Respondent changed the appearance of the website, suppressing the direct use of the Complainant’s trademark, but maintaining the links to the above mentioned related websites.
The Panel understands that all evidence as above shows that the Respondent obtained the registration and has been using the disputed domain name in bad faith.
The Panel, hence, finds present the third element. 7. Decision
For the foregoing reasons, in accordance with paragraph 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Alvaro Loureiro Oliveira
Sole Panelist
Dated: January 18, 2012
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