The Complainant is Jardiland of Paris, France, represented by Cabinet Plasseraud, France.
The Respondent is Future-3D Inc. of Sherbrooke, Quebec, Canada. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Wild West Domains, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 14, 2012. The Center transmitted its request for registrar verification to the Registrar on March 15, 2012. The Registrar replied on March 16, 2012, confirming that the Respondent was the registrant and it was the Registrar of the Domain Name, that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied, that the Domain Name would expire on August 5, 2012, and would remain locked during this proceeding, and that the registration agreement was in English. The Registrar also provided the contact details held in respect of the Domain Name on its WhoIs database and stated that the Domain Name was registered to the Respondent on July 2, 2008.
The Center verified that the Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 19, 2012. In accordance with paragraph 5(a) of the Rules, the due date for Response was April 8, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 10, 2012.
The Center appointed Jonathan Turner as the sole panelist in this matter on April 19, 2012. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent, and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules. 4. Factual Background
The Complainant operates a chain of stores under the name “Jardiland” selling gardening and related products. It has 150 stores in France, six in Spain, one in Belgium and one in Switzerland. It has registered JARDILAND and devices containing the word JARDILAND as trademarks in France and internationally. The Complainant has used the JARDILAND mark since 1982 and became leader in the field of gardening and related products in France in 1997.
The Domain Name is directed to a web page containing links to other websites, in particular relating to gardening, including websites of direct competitors of the Complainant.
The Respondent was held to have registered and used the domain name in bad faith in a decision of the National Arbitration Forum of October 9, 2006 (Metropolitan Life Insurance Company v Future-3D Inc., NAF Claim No. FA0608000781876). 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is confusingly similar to its registered trademark JARDILAND. In this regard, the Complainant observes that the final letter “e” of the second level domain would not be pronounced in French and would not distinguish the Domain Name from its mark.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name. It states that it has not permitted the registration of this Domain Name and alleges that the sole purpose of the registration is to take unfair advantage of the distinctive character and repute of its earlier trademarks. The Complainant maintains that it only recently became aware of the Domain Name through a newly instituted surveillance and has not acted in any way that would indicate consent to the registration. The Complainant adds that there is no prescription date in UDRP proceedings.
The Complainant further contends that the Domain Name was registered and is being used in bad faith. The Complainant points out that the website to which it is directed displays text and advertisements in French directing consumers to its direct competitors, contains advertisements worded only in French targeting the market in which the Complainant is particularly well known, has the title “J” followed by the subtitle “Ce que vous avez besoin quand vous l’avez besoin”, uses Google AdSenses, a program which empowers online publishers to earn revenue by displaying relevant advertisements, and has advertisements and tabs labeled so that they tend to show a link between the Complainant and its competitors, thereby misleading Internet users into believing that the competitors are approved retailers of the Complainant. The Complainant alleges that the Respondent receives click-through commissions from the links on its web page.
According to the Complainant, the Domain Name was registered primarily for the purpose of disrupting the Complainant’s business and, by using the Domain Name, the Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s mark as to the source of the Respondent’s website, goods and/or services.
The Complainant requests a decision that the Domain Name be transferred to it. B. Respondent
As stated above, the Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. It is appropriate to consider each of these requirements in turn. A. Identical or Confusingly Similar
The Panel finds that the Domain Name is confusingly similar to the mark JARDILAND in which the Complainant has registered rights.
As is well established, the generic top level domain suffix should be discounted, since it is not regarded by Internet users as differentiating a domain name from a mark. Furthermore, as the Complainant points out, the addition of a final letter “e” to the Complainant’s mark is also insufficient to distinguish the Domain Name from the Complainant’s mark, particularly as the mark is primarily known to Francophone consumers who would not pronounce this letter.
The Panel finds that the first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
The Panel finds that the Respondent has not used or made preparations to use the Domain Name for any bona fide offering of goods or services. The Respondent’s only use of the Domain Name has been for a web page containing sponsored links to other websites, including websites of direct competitors of the Complainant. The Panel does not regard this as a bona fide offering of goods or services.
The Panel also finds that the Respondent is not commonly known by the Domain Name and that it is not making any legitimate noncommercial or fair use of them.
Although the Respondent apparently acquired the Domain Name some four years ago, the Complainant’s failure to object to it earlier does not constitute consent to its registration and use, and there is no reason to doubt the Complainant’s statement that it has not consented. As the Complainant rightly points out, the UDRP does not require a complaint to be made within any specified time limit: see Deutsche Telekom AG v. Oded Zucker,WIPO Case No. D2004-0749.
On the evidence before the Panel, there is no other basis on which the Respondent could claim any right or legitimate interest in respect of the Domain Name. The Panel concludes that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith
The Panel finds on the undisputed evidence that, by its use of the Domain Name, the Respondent has intentionally attempted to attract Internet users to its web page by creating a likelihood of confusion with the Complainant’s trademark as to the source of this web page, for commercial gain in the form of click-through commissions on sponsored links provided on this page to websites of third parties, including competitors of the Complainant.
In accordance with paragraph 4(b)(iv) of the UDRP, this constitutes evidence of registration and use of the Domain Name in bad faith.
There is no material in the file which displaces this presumption. Accordingly the Panel finds that the Domain Name has been registered and is being used in bad faith. The third requirement of the UDRP is satisfied. 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 transferred to the Complainant.
Jonathan Turner
Sole Panelist
Dated: April 30, 2012
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