The Complainant is Areva of Paris, France represented by Dreyfus & associés, France.
The Respondent is Harrold Gwatta of Imaurean, Niger. 2. The Domain Names and Registrar
The disputed domain names , , are registered with Tucows Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 28, 2011. On December 28, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On December 29, 2012, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on January 20, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was February 9, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 10, 2012.
The Center appointed James Bridgeman as the sole panelist in this matter on February 16, 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 engaged in the nuclear energy industry having activities that cover the entire nuclear cycle, from uranium mining to used fuel recycling, including reactor design and related services.
The Complainant is the owner the AREVA trademarks across the world. The Complainant is registered owner of the following International Trademark Registration AREVA n° 783282 registered on November 28, 2001, covering goods and services in classes 1, 4, 6, 7, 9, 11, 19, 35, 36, 37, 38, 39, 40, 41 and 42
The Complainant is also the owner of the following OAPI trademarks:
AREVA n° 3200103749 registered on December 7, 2001 and duly renewed in classes in classes 35, 36, 37, 38, 39, 40, 41, 42;
AREVA n° 3200103750 registered on December 7, 2001 and duly renewed on December 7, 2001 in classes 1, 4, 6, 7, 9, 11, 19.
The name and address indicated correspond to the Complainant’s former name and address.
The name AREVA is also the corporate and trade name of the Complainant.
The Complainant owns following domain names: of February 13, 1998; of September 17, 2002; of October 26, 2005; of November 25, 2003.
There is no information available about the Respondent except for that set out in the Complaint and in the Registrar’s WhoIs. Each of the disputed domain names were registered on July 6, 2011. 5. Parties’ Contentions A. Complainant
The Complainant requests that this Panel order that the disputed domain name be transferred to the Complainant and that the disputed domain names and be cancelled.
The Complainant’s Rights
The Complainant relies on the above trademark registrations and furthermore submits that it is the largest uranium mining producer in the world.
The Complainant submits that in 2010, the Complainant’s revenue was €9.1 billion with a consolidated net income of €883 million. The Complainant submits that mining represents 12% of the Complainant’s consolidated revenue in 2010. The Complainant employs almost 48,000 persons across the world, 5200 of whom are engaged in mining and has manufacturing and commercial facilities in every continent.
The Complainant submits that it has an established reputation in Africa and the Middle East where 2% of its revenue is generated in Africa and the Middle East and where 6% of its work force is employed. The Complainant conducts manufacturing operations in Cote d’Ivoire, Namibia, Niger, South Africa and Sudan. The Complainant has been present in Niger, a country with considerable uranium resources, for more than 40 years and is the first private employer in Niger.
The Complainant submits that each of the disputed domain names are identical or at least confusingly similar to the Complainant’s trademark AREVA.
Addressing the disputed domain name , the Complainant asks this Panel to note that the disputed domain name reproduces the Complainant’s trademark in its entirety. The Complainant submits that in many UDRP decisions, panels have considered that the incorporation of a trademark in its entirety may be sufficient to establish that a domain name is identical or confusingly similar to the Complainant’s registered mark, AREVA v. St. James Robyn Limoges,WIPO Case No. D2010-1017; Société des Participations du Commissariat à l’Energie Atomique v. David Morton,WIPO Case No. D2007-0679; and AT&T Corp. v. William Gormally,WIPO Case No. D2005-0758.
Furthermore, the Complainant submits that its AREVA trademark is well-known worldwide and will be easily identified as the dominant part of the disputed domain name as is evidenced by the decisions of the panels in a number of previous cases, viz. Areva v. St. James Robyn Limoges (supra); Areva v. N/A,WIPO Case No. D2008-0537; Areva v. Domains by Proxy, Inc./ Sheng Xiang,WIPO Case No. D2011-0061.
The Complainant submits that the mere adjunction of the generic term “uranium” in the disputed domain name is not sufficient to distinguish the latter from the Complainant's trademark. Indeed, numerous UDRP decisions have established that merely adding generic words is insufficient to avoid a finding of confusing similarity. In this regard the Complainant cites the decision of the panel in TPI Holdings, Inc. v. Carmen Armengol,WIPO Case No. D2009-0361.
Moreover, the Complainant argues that in the present case, far from reducing the likelihood of confusion, the additional element “uranium” adds to the risk of confusion because given the reputation of the core activity of the Complainant’s business in the field of uranium mining and processing, Internet users may wrongly believe this disputed domain name is closely linked to the Complainant.
Addressing the disputed domain names and the Complainant argues that the element “avera” should be regarded as a variant of the Complainant’s trademark AREVA and the registration and use of the disputed domain names and amounts to typo-squatting. In support of this argument, the Complainant asks this Panel to note that the disputed domain names and each imitate the Complainant’s AREVA trademark with the inversion of their second and fourth letter. The Complainant argues the inversion of the letters fails to distinguish the aforementioned disputed domain names from the Complainant’s trademark.
Specifically with regard to the disputed domain name the Complainant argues that the adjunction of the geographic term “Niger” is insufficient to avoid likelihood of confusion. It is well-established that the addition of a generic indication does not distinguish the a domain name from the trademark at issue as has been held in a number of previous cases including Lancôme Parfums Et Beauté Et Compagnie, Laboratoire Garnier Et Compagnie, L'Oréal S.A. v. Cong Ty Co Phan Phununet,WIPO Case No. D2010-0603. Furthermore the Complainant has established business activities in Niger.
Specifically with regard to the disputed domain name the Complainant submits that the adjunction of the generic term “uranium” in the disputed domain name is similarly insufficient to avoid likelihood of confusion, and on the contrary increases such likelihood of confusion because the Complainant has an established reputation in its core business activities relating to the mining and processing of uranium.
The Complainant submits that the gTLD suffix “.com” may be ignored by this Panel in making the comparison because it does not affect the likelihood of confusion. In this regard the Complainant cites the decisions of panels in Areva v. Privacy— / Rampe Purda,WIPO Case No. D2010-2143; LEGO Juris A/S v. Mariusz Zielezny,WIPO Case No. D2010-0796; and Accor S.A. v. .,WIPO Case No. D2007-1257.
Finally the Complainant argues that because the trademark AREVA is a distinctive term, its use and the use of the confusingly similar element “avera” in the disputed domain names increases the likelihood of confusion between the disputed domain names and the Complainant’s trademark.
The Respondent’s rights or legitimate interests in respect of the disputed domain names
The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain names. The Complainant submits that the Respondent is not affiliated with the Complainant in any way, nor has the Respondent been authorized by the Complainant to use and register the Complainant’s AREVA trademark, or to seek registration of any domain name incorporating said trademarks.
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, LEGO Juris A/S v. DomainPark Ltd, David Smith, A Domain Privacy, Transure Enterprise Ltd, Host master,WIPO Case No. D2010-0138.
Furthermore, the Respondent has no prior rights or legitimate interests in the disputed domain names. The registration of the AREVA trademark together with the presence of the Complainant in Niger long preceded the registration of the disputed domain name .
Moreover, the Respondent has never answered the Complainant’s attempt to communicate by letter and email. Panels have repeatedly stated that when a respondent does not avail himself of his right to respond to a complainant, it can be assumed that the respondent has no rights or legitimate interests in a disputed domain name. In support of this assertion the Complainant cites the decision of the panel in AREVA v. St James Robyn Limoges (supra); and Nordstrom, Inc. and NITIC, Inc. v. Inkyu Kim,WIPO Case No. D2003-0269.
The Respondent has failed to justify any claim to having a legitimate interest in the disputed domain name . In this regard, previous panel decisions have held that the lack of justification from a respondent might allow an inference that the latter has no legitimate interests or rights in the disputed domain name. The Complainant cites the decisions in Areva v. Domains by Proxy, Inc./ Sheng Xiang (supra).
The Complainant has an extensive reputation worldwide, including in Niger. The disputed domain names are so identical to the Complainant’s well-known trademarks AREVA that the Respondent cannot reasonably pretend it was intending to develop a legitimate activity through use of the disputed domain names. Indeed, given the fame of the Complainant’s trademark AREVA, the Respondent could not have a legitimate contemplated use for offering goods or services at the disputed domain names. In support of this assertion the Complainant refers to the decisions of previous panels, Sears, Roebuck and Co. v. Hanna Law Office,WIPO Case No. D2000-0669; and VIVENDI v. Private Registrant/ Mr. Arshad Mohamed,WIPO Case No. D2011-0154.
Moreover, the Complainant argues that the Respondent is not commonly known by the name “Areva”. The Respondent’s objective in choosing a domain name identical to the trademark AREVA as was likely to benefit from the reputation and goodwill attached to the Complainant’s trademark, citing Accor v. S,WIPO Case No. D2008-0706. The disputed domain name has been used to direct to the website of the company URU Metals specialized in the exploitation of uranium and nickel mines which cannot constitute a bona fide offering of goods and services, citing TNT Holdings B.V. v. Sylvie Bona,WIPO Case No. D2008-1070; and L’Oréal and Lancôme Parfums et Beauté et Compagnie v. Deco Trends & Art, K. Plooyer,WIPO Case No. D2011-0524.
The fact that the Respondent and the Complainant appear to conduct similar activities and appear to be in competition cannot provide the Respondent with any right or interest in the disputed domain name.
For the Respondent to choose disputed domain names close to the Complainant’s trademark and activity to direct Internet users to the website of a company not related to the Complainant cannot amount to a good faith use of the disputed domain name, Courtney Kellogg v. Vance Larson,WIPO Case No. D2007-0085; and RuggedCom, Inc. v. LANstore, Inc.,WIPO Case No. D2005-0760. There is thus no possible good faith use of the disputed domain names. The latter is not and has not been used for a bona fide offering of goods and services, nor does it correspond to a legitimate noncommercial or fair use of the disputed domain name.
Additionally, as has been held by numerous previous panels “typosquatting” does not constitute a legitimate use of a trademark.
Moreover, the term “areva” has no meaning in English, the language of the Registration Agreement.
For all of the above-cited reasons, it is undoubtedly established that the Respondent has no rights or legitimate interests with respect to the disputed domain names under paragraph 4(a)(ii) of the Policy.
Registered and is being used in bad faith
The Complainant asserts that the disputed domain names have been registered and are being used in bad faith.
The Complainant submits that it is improbable that the Respondent was unaware of the existence of the Complainant and its trademarks at the time of registration of the disputed domain names. The Complainant submits that its activities are important in Niger and that it is well-known throughout the world, including in Niger. In light of the reputation of the Complainant’s trademark AREVA, the Respondent’s reproduction of the trademark in its entirety clearly proves that the Respondent was aware of the existence of the 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, LEGO Juris A/S v. Reiner Stotte,WIPO Case No. D2010-0494; and Caixa D’Estalvis i Pensions de Barcelona (“La Caixa”) v. Eric Adam,WIPO Case No. D2006-0464.
The Complainant states that the disputed domain name did not resolve to any active website on the date of the Complaint. However when the disputed domain name first came to the Complainant’s attention it resolved to the website of the company URU Metals “”, specialized in uranium mining and nickel and subsequently resolved to a webpage indicating this website has been suspended together with a link to “”.
The Complainant also noticed that the second level domain name in the email address of the Respondent’s contact also resolves to the website of a company specialized in consulting services in the mining business.
The Complainant states that when the disputed domain name came to its attention it sent a cease-and-desist letter via email and a registered letter to the Respondent requesting transfer of the disputed domain name . However, the Respondent did not reply despite the Complainant’s reminder and the last version of the Complainant’s letter was returned with the mention “ni apparartient ni au Niger ni au Nigeria” (does not belong to Niger or Nigeria).
The Complainant asks this Panel to note that the Respondent is the also owner of other domain names and which correspond to typosquatted forms of the Complainant’s trademark and a domain name . The Complainant explains that the word “Imouraren” corresponds to a mining site discovered by and exploited by the Complainant in partnership with the Niger State.
The Complainant argues that since the Respondent has never replied to the Complainant’s attempts to communicate, no amicable settlement could be found and the Complainant was forced to start the present proceedings in order to obtain the transfer of the disputed domain name and cancellation of the disputed domain names and .
Additionally, a quick AREVA trademark search reveals the existence of the Complainant and its trademark. The 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 the Complainant’s products or services, citing Compagnie Générale des Etablissements Michelin v. A Domain Privacy/Transure Enterprise Ltd,WIPO Case No. D2010-2085.
The Complainant submits that numerous panels have found that a finding of typosquatting, as in the present case, is sufficient to establish use and registration in bad faith. Citing E, Inc. v. Yingkun Guo, dba This domain name is 4 sale,WIPO Case No. D2006-0694; Barnes & Noble College Bookstores, Inc. v. Oleg Techino,WIPO Case No. D2006-1537. The Complainant argues that in the present case, one disputed domain name reproduces Complainant’s trademark in its entirety and the two other include a very close variant of such mark.
The Complainant furthermore submits that the disputed domain name has been used to resolve to the website of a company that claims to provide services in the field of energy. It thus appears obvious the Respondent had knowledge of the Complainant and its trademark AREVA when the Respondent registered the disputed domain name.
The Respondent registered the same day the disputed domain names , and . These disputed domain names include the Complainant’s trademark or a variation of the same combined with a term linked to the Complainant’s activities or the indication of a country where the Complainant is largely present. The Respondent also own a domain name while “Imouraren” corresponds to a mining site discovered by the Complainant and exploited by the Complainant in partnership with Niger State.
In view of the above it appears clear that the Respondent was perfectly aware of the Complainant and its AREVA trademarks when the Respondent registered the disputed domain names , and .
Consequently, in view of the abovementioned circumstances, it is established that the Respondent registered the disputed domain names in bad faith.
Addressing alleged bad faith use of the disputed domain names, the Complainant argues that the Respondent has used one of the disputed domain name to redirect Internet users to the website of a company that claims to provide services in the field of energy. It is thus clear that the Respondent has taken advantage of the Complainant’s reputation and goodwill to divert traffic towards other websites and to make profits.
There is little doubt many Internet users attempting to go to the Complainant’s website at the time of the redirection have ended up at the website of the Respondent. Use of a domain name to direct Internet users to one’s own website is not a use in good faith with regards to the policy, TNT Holdings B.V. v. Sylvie Bona,WIPO Case No. D2008-1070; and L’Oréal and Lancôme Parfums et Beauté et Compagnie v. Deco Trends & Art, K. Plooyer (supra).
As of the date of the Complaint, the disputed domain name did not resolve to any active website, but that does not prevent a finding of bad faith on the Respondent’s side. Previous panels have already considered that passive holding of a disputed domain name can satisfy the requirements of paragraph 4(a)(iii), and that in such cases the Panel must give close attention to all the circumstances of the Respondent’s behaviour. Citing Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; and Farouk Systems, Inc. v. QYM,WIPO Case No. D2009-1572.
In Telstra Corporation Limited v. Nuclear Marshmallows, the panel concluded that the respondent’s passive holding of the domain name satisfied the requirement of paragraph 4(a)(iii) that the domain name was being used in bad faith by the respondent because: (1) the complainant’s trademark had a strong reputation and was widely known; (2) the respondent had provided no evidence of any actual or contemplated good faith use by it of the domain name; (3) the respondent had taken active steps to conceal its true identity, by operating under a name that is not a registered business name and; (4) the respondent had actively provided, and failed to correct, false contact details, in breach of its registration agreement.
Furthermore, because at the time, the Complainant noticed the disputed domain names and did not resolve to any active website and remained true on the date of the Complaint.
Consequently, in view of the above, it is established that the Respondent registered and used the disputed domain names , and in bad faith in accordance with paragraph 4(a)(iii) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements in respect of each disputed domain name to obtain an order that the disputed domain names should be cancelled or transferred:
(1) that the disputed domain names registered by the Respondent are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) that the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(3) that the disputed domain names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
The Complainant has provided evidence of its ownership of the trademark AREVA through its above-listed trademark registrations and has also provided evidence of its established global reputation in the use of the trademark in the field of uranium mining and processing.
The disputed domain name is composed of the three elements namely the word “areva” which is identical to the Complainant’s AREVA trademark, a hyphen, and the word “uranium”. The word “areva” is a distinctive coined word having no apparent dictionary meaning. This Panel finds that the word element “avera” is the dominant element of the disputed domain name. The hyphen element lacks any distinctiveness.
On the face of it, the word “uranium” is generic and in itself does not contribute any distinctiveness to the disputed domain name. However, because of the established reputation of the Complainant in the uranium mining and processing industries, the combination of the word “uranium” with the Complainant’s AREVA trademark will on the balance of probabilities increase the risk of confusion among Internet users.
The disputed domain name is composed of a combination of the word “avera”, a hyphen and the word “niger”. The word “avera” has no apparent dictionary meaning. In the absence of any explanation from the Respondent, comparing the word “avera” and the Complainant’s AREVA trademark, it is clear that the only differences is the interchange of the position of the letters “r” and “e”. The element “niger” is identical to the name of the country Niger where the Complainant has an established business. In the circumstances, this Panel finds that the combination of the country name and the word “avera” will on the balance of probabilities generate confusion among Internet users.
The disputed domain name is composed of a combination of the word “avera”, a hyphen and the generic word “uranium”. As held above the “avera” element is confusingly similar to the Complainant’s AREVA trademark, the hyphen is not in any way distinctive and the addition of the word “Uranium” in fact adds to the likelihood of confusion in the context.
For all the above mentioned reasons this Panel finds that the disputed domain names are identical or confusingly similar to the trademark AREVA in which the Complainant has rights, and therefore the condition of Paragraph 4(a)(i) is fulfilled. B. Rights or Legitimate Interests
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interest in the disputed domain names. The Complainant has not given any license or permission to the Respondent to use the AREVA trademark. The Respondent is not known by the disputed domain names and on the evidence on file the Respondent is not using the disputed domain names for any legitimate purpose.
From the evidence on file, the disputed domain names and have been inactive at all times.
On the evidence, while the disputed domain name was also inactive on the date of the Complaint, the Complainant has furnished evidence that has resolved in the past to active websites that refer to third party websites each of which have a connection with the mining of uranium.
It is well established that once a complainant has made out a prima facie case that the respondent has no rights or legitimate interest in a domain name, the burden of proof shifts to the respondent to establish such use.
In the absence of a Response or explanation from the Respondent, this Panel finds that the use of the Complainant’s trademark as the dominant element of the disputed domain name which resolves to competing websites cannot without explanation confer rights or legitimate interests in the disputed domain name.
Additionally, in the circumstances of this case, the use of the confusingly similar word “avera” in the passively held and domain names cannot confer rights or legitimate interest in the disputed domain names.
For all the above mentioned reasons this Panel finds that the Respondent has no rights or legitimate interest in the disputed domain names and therefore the condition of Paragraph 4(a)(ii) is fulfilled. C. Registered and Used in Bad Faith
On the evidence on file, and in the absence of a Response, this Panel finds that on the balance of probabilities, the disputed domain names were chosen and registered to take predatory advantage of the Complainant’s reputation and goodwill because they are each confusingly similar to the Complainant’s AREVA trademark.
In reaching this conclusion this Panel is influenced by the following circumstances:
- neither the word “areva” or “avera” have any dictionary meaning;
- the Complainant has a number of registered trademarks including the above OAPI registrations that pre-date the registrations of the disputed domain names on July 6, 2011;
- the Complainant had previously registered the similar domain names on February 13, 1998, on September 17, 2002, on October 26, 2005 and on November 25, 2003;
- it is most probable that the Respondent was actually aware of the Complainant’s reputation in the AREVA trademark when the disputed domain names were registered;
- the disputed domain name is composed of the Complainant’s trademark and a descriptive element that refers to a product produced and processed by the Complainant;
- in the absence of any explanation forthcoming from the Respondent, on the balance of probabilities the element “avera” in the disputed domain names and was selected and registered to take advantage of the similarity with the AREVA trademark;
- the additional elements “uranium” in two of the disputed domain names refer directly to the business activities of the Complainant;
- the additional element being the country name “Niger” in the other disputed domain name refers directly to a jurisdiction where the Complainant has an established business.
On the evidence each of the disputed domain names are presently inactive.
As the Complainant rightly argues passive holding of a domain name can amount to use in bad faith. This has been consistently held by panels since Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The WIPO of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) states that panels “draw inferences about whether the domain name was used in bad faith given the circumstances surrounding registration, and vice versa.” The overview states that examples of cumulative circumstances found to be indicative of bad faith “include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant’s concealment of its identity.”
In the present circumstances each of the disputed domain names were each selected and registered because of their confusing similarity to the Complainant’s trademark; the disputed domain name has in the recent past been used to resolve to a competing website.
This Panel finds that in the evidence of the present case, such passive holding amounts to use in bad faith.
For all the above mentioned reasons this Panel finds that the disputed domain names were registered and are being used in bad faith. The condition of paragraph 4(a)(iii) of the Policy is also fulfilled and the Complainant is entitled to the remedies requested. 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 the Complainant and that the disputed domain names and be cancelled as requested by the Complainant.
James Bridgeman
Sole Panelist
Dated: February 21, 2012
Full & Egal Universal Law Academy