Complainant is Compagnie Générale des Etablissements Michelin, Clermont-Ferrand, France, represented by Dreyfus & associés, France.
Respondent is Terramonte Corp, Domain Manager, Saint Kitts and and Registrar
The disputed domain name is registered with PSI-USA, Inc. dba Domain Robot. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 8, 2011. On November 8, 2011, the Center transmitted by email to PSI-USA, Inc. dba Domain Robot a request for registrar verification in connection with the disputed domain name. On November 9, 2011, PSI-USA, Inc. dba Domain Robot transmitted by email to the Center its verification response confirming that , which it embodies almost identically, with the mere deletion of the letter “i”, thus profiting from misspellings by Internet users via the practice known as “typosquatting”. Complainant points out that its trademark has been deemed “well-known” or “famous” in previous WIPO UDRP proceedings. Complainant contends that deletion of a single letter has not changed the meaning of the word and is therefore insufficient to reduce the likelihood of confusion. Complainant also contends that, for purposes of examining the identity or similarity between Complainant’s trademarks and the disputed domain name, the “.com” extension should be disregarded.n trademark, no actual or contemplated bona fide or legitimate use of the domain name can reasonably be claimed. Complainant also contends that Respondent has engaged in a pattern of conduct of registering domain names reproducing Complainant’s MICHELIN trademark and constituting typosquatting.
Finally, concerning the third test under the Policy, Complainant argues that Respondent has registered and uses the disputed domain name in bad faith. According to Complainant, it is implausible that Respondent could have been unaware of Complainant and its well-known trademark when it registered the disputed domain name. Furthermore, Complainant notes that Respondent has certainly been aware of Complainant’s trademark since December 2009, when it received a cease and desist letter relating to another domain name () confusingly similar to Complainant’s MICHELIN trademark. Complainant contends that Respondent’s knowledge of Complainant’s trademark at the time of registration of the disputed domain name proves bad faith registration. Complainant further contends that registering a domain name so similar to a well-known trademark constitutes typosquatting, which is in itself evidence of bad faith registration. Complainant contends, too, that Respondent’s use of the disputed domain name is in bad faith, noting that Respondent uses the domain name to direct Internet users to a webpage providing click through revenues to Respondent, and contends that this evidences Respondent’s bad faith, since it amounts to using a well-known trademark to attract Internet users to a website for commercial gain. Complainant contends that Respondent is intentionally exploiting confusion between the disputed domain name and Complainant’s well-known trademark for a commercial gain. Additionally, Complainant cites the fact that Respondent took these actions without permission, and failed to respond to Complainant’s cease and desist letters as indicators of bad faith usage.
Complainant seeks cancellation of the disputed domain name. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy assigns to Complainant the burden of proving that each of the three following elements is satisfied in order to prevail:
(i) The disputed domain name 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 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. Effect of the Default
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” In this instance, only Complainant has submitted any statements or documents.
While default by a respondent will not automatically result in a decision in favor of the complainant, who must still establish each of the three elements required by paragraph 4(a) of the UDRP (See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.2), paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules.
This Panel finds no exceptional circumstances attending Respondent’s failure to submit a response. As a result, the Panel infers that Respondent does not deny the facts asserted and contentions made by Complainant from these facts. See Reuters Limited v. Global Net 2000, Inc.,WIPO Case No. D2000-0441; Ross-Simons, Inc. v. Domain.Contact,WIPO Case No. D2003-0994. Therefore, asserted facts that are not unreasonable will be taken by the Panel as true and Respondent will be subject to the inferences that flow naturally from the information provided by Complainant. See Reuters Limited v. Global Net 2000, Inc.,WIPO Case No. D2000-0441; RX America, LLC v. Matthew Smith,WIPO Case No. D2005-0540. B. Identical or Confusingly Similar
This element requires consideration of two issues: (1) whether Complainant has rights in a trademark or service mark; and (2) whether the disputed domain name is identical or confusingly similar to such trademark or service mark.
Complainant has provided documentary evidence that it is the owner of at least two trademark registrations consisting of the word MICHELIN. The Panel adopts the consensus view set forth in WIPO Overview 2.0, are all irrelevant for the purpose of finding rights in a mark under the first element of the UDRP.” Thus, Complainant has established its rights in the trademark.
This leaves the question of whether the disputed domain name is identical or confusingly similar to Complainant’s registered trademark. The Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark, because the disputed domain name consists of the entirety of Complainant’s trademark, differing only in the omission of the letter “i”, along with the standard TLD “.com”. Additionally, the disputed domain name is virtually identical to Complainant’s domain name . As a result, a predictable and easily made typing error could result in an Internet user being diverted from Complainant’s site to that of Respondent. See E, Inc. v. Digi Real Estate Foundation,WIPO Case No. D2006-1043. In light of the foregoing, the Panel finds that the disputed domain name and Complainant’s registered trademark, when directly compared, are confusingly similar. Complainant has therefore satisfied the first requirement of the Policy, by establishing that the disputed domain name is identical of confusingly similar to a mark in which it has rights. C. Rights or Legitimate Interests
The consensus view in the WIPO U WIPO Overview 2.0, paragraph 2.1). The absence of rights or legitimate interests is established if a complainant makes out a prima facie case and the respondent enters no response. See Accor v. Eren AtesmenId,WIPO Case No. D2009-0701.
Complainant contends without rebuttal that Respondent is not commonly known by the name MICHELIN, nor has Respondent ever been affiliated with or authorized by Complainant to use its registered trademark, and Complainant points out that Respondent abandoned its earlier registration of upon receipt of Complainant’s written objection. These unrebutted contentions suffice to make out the prima facie case required of Complainant in connection with this element. D. Registered and Used in Bad Faith
The Policy requires Complainant to prove both that Respondent registered the disputed domain name in bad faith, and that the domain name is being used in bad faith.
Complainant has established that its MICHELIN trademark is well-known and/or famous, as evidenced by both the international registrations submitted to this Panel, as well as the conclusions of previous panels considering the mark (Compagnie Générale des Etablissements Michelin v. Trending,WIPO Case No. D2010-0484; Compagnie Générale des Etablissements Michelin v. A Domain Privacy/Transure Enterprise Ltd.,WIPO Case No. D2010-2085; Compagnie Générale des Etablissements Michelin (Michelin) v. BMtexnologiya MMC, Tural Malikov,WIPO Case No. D2010-2150; Compagnie Générale des Etablissements Michelin v. Pavol Horecny,WIPO Case No. D2009-1554; Compagnie Générale des Etablissements Michelin v. Geoacchino Zerbo,WIPO Case No. D2010-0865). Complainant has also submitted uncontested evidence that, in the course of its successful effort to resolve a prior dispute with Respondent over the domain name , Complainant had notified Respondent in writing of its trademark rights in the MICHELIN mark in 2009. Since Respondent acknowledged this communication, by responding in writing, and by abandoning its registration of the then-disputed domain name (), it is clear in this Panel’s view that, at the time the disputed domain name () was registered, Respondent had actual knowledge of Complainant’s preexisting rights in the MICHELIN trademark. The Panel, therefore, concludes that Complainant has established that Respondent registered the disputed domain name in bad faith.
Additionally, the Panel accepts the uncontested evidence submitted by Complainant that Respondent has used the disputed domain name to host a page consisting of pay-per-click links to commercial websites related to, among other things, automobile tires. In light of Respondent’s actual knowledge of Complainant’s trademark, the Panel concludes that such use of the disputed domain name by Respondent constitutes an attempt by Respondent to use Complainant’s trademark to attract Internet users to its site for commercial gain – a usage specifically identified as evidence of bad faith usage in paragraph 4(b)(iv) of the Policy. This conclusion is underscored by the fact that Respondent has attempted to typosquat on Complainant’s MICHELIN trademark on at least one previous occasion.
The Panel therefore concludes that Complainant has successfully established the third element required under the Policy. 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 domain name, be cancelled.
R. Mark Halligan
Sole Panelist
Date: February 7, 2012
Full & Egal Universal Law Academy