The Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France.
The Respondent is Milan Kovac of Bratislava, Slovakia / Privacy--P of Shanghai, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Hebei Guoji Maoyi (Shanghai) LTD aka HEBEI INTERNATIONAL TRADING ( SHANGHAI) CO., LTD dba HebeiD. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 26, 2012. On March 27, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 28, 2012, 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. The Registrar also indicated that the language of the Registration Agreement is Slovak. The Center sent an email communication to the Complainant on March 28, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on April 2, 2012. On March 28, 2012, the Center transmitted an email to the parties in both Slovak and English language regarding the language of proceedings. On March 29, 2012, the Complainant confirmed its request that English be the language of proceeding. The Respondent did not comment on the language of proceedings by the specified due date.
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 April 3, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was April 23, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 24, 2012.
The Center received email communications from the Registrar on April 17, 18, and 27, 2012 concerning the "lock" status of the disputed domain name.
The Center appointed Desmond J. Ryan as the sole panelist in this matter on May 3, 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. Language of the Proceedings
The language of the Registration Agreement is Slovak. The default position provided by paragraph 11 of the Rules is therefore that Slovak should be the language of the proceedings unless the parties otherwise agree. The Panel has, however, the power to decide otherwise having regard to all the circumstances of the proceedings.
The Complaint and the amended Complaint were filed in English and on March 28, 2012 the Center wrote to the parties inviting the Complainant to either submit the Complaint in Slovak or file a request that the proceedings be in English no later than March 31, 2012. The Respondent was given the opportunity to file its Language of Proceedings submissions by April 2, 2012. The Respondent has not made any submissions.
The Complainant submits that the matter should proceed in English because:
- It would be very expensive and time-consuming to translate the Complaint and annexures into Slovak;
- circumstances indicate that the Respondent, Privacy -- P, communicates in English;
- the website to which the disputed domain name directs contains links in English.
The Panel further notes that since September 2010 the Respondent Milan Kovac has been the respondent in some fifteen prior UDRP cases under the Policy and, so far as can be determined, in all of those cases the proceedings were in English.
In the circumstances the Panel determines that for fairness between the parties and in the interest of efficient and expeditious disposition of the proceedings, the proceedings should be conducted in English. 4. Factual Background
The Complainant is a French multinational company operating throughout the world marketing, inter alia, motor vehicle tires. It is also well-known as a publisher of maps, travel guides and restaurant and accommodation guides. Established in 1887 by the brothers Michelin, it currently has net sales in excess of 20 billion Euros. It owns current registrations of its MICHELIN trademark throughout the world including in Slovakia and China. The MICHELIN trademark has been recognized as well-known or famous in several prior UDRP decisions under the Policy, see for example Compagnie Générale des Etablissements Michelin (Michelin) v. Rosa Chen,WIPO Case No. D2011-1336.
There is no information available about the Respondent Milan Kovac save that, as noted above, he has been the unsuccessful respondent in fifteen cases decided by UDRP panels and in most of them he has initially concealed his identity behind a privacy protection service. In those cases also, he has failed to provide a response or to answer correspondence. Attempts by the Center to serve documents and notices on Milan Kovac at the address in Slovakia provided by the Registrar were unsuccessful; the courier advising that "The consignee is unknown at the address provided and the phone number is wrong".
On August 2, 2011, the Complainant sent a cease and desist letter to the Respondent, Privacy--P. Despite several reminders, it received no reply. 5. Parties’ Contentions A. Complainant
The Complainant submits that the disputed domain name is identical or confusingly similar to its MICHELIN trademark in which it has established trademark rights throughout the world including in China and Slovakia. It contends that the addition of the word "pneus", which is the French word for “tires”, does not serve to distinguish the disputed domain name from its trademark; it submits, that the addition of the word "pneus" further contributes to the likelihood of confusion since it describes the Complainant's main business.
The Complainant further submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It asserts that the Respondent is not affiliated with the Complainant, has not been authorized to use the Complainant's trademark in any way, is not commonly known by the name “Michelin”, and has not used or made preparations to use the disputed domain name in connection with the bona fide offering of goods or services. The only use that the Respondent, Milan Kovac, has made of the disputed domain name has been to direct to a website providing links to the websites of competitors of the Complainant. This, the Complainant contends, is not a bona fide or legitimate use of the disputed domain name and cites, among many prior UDRP decisions under the Policy to that effect, eDreams, Inc. v Private Whois,WIPO Case No. D2009-1507.
The Complainant further contends that the Respondent's failure to reply to the Complainant's cease and desist letter, leads to an assumption that the Respondent has no rights or legitimate interests upon which it could rely in defence of the Complainant's allegations.
The Complainant contends that in view of the notoriety of the MICHELIN trademark throughout the world the Respondent, Milan Kovac, must have been aware of the Complainant's rights when he registered the disputed domain name, and this is further evidenced by the reproduction of the trademark in its entirety combined with the generic term describing the Complainant's main activity. The Complainant points to the Respondent's use of a privacy protection service and failure to reply to correspondence as further indicators of bad faith. In the Complainant's submission the presence of the generic term "pneus" and the focus on commercial links of tires on the website to which the disputed domain name resolves, illustrates the Respondent's bad faith, citing the observation of the panelist in LEGO Juris A/S v. Reiner Stotte,WIPO Case No. D2010-0494 who said that:
"…bad faith is present where a domain domain is so obviously connected with such a well-known product that its very use by someone with no connection with the product suggests opportunistic bad faith". B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has clearly demonstrated widespread registration rights in its MICHELIN trademark as well as an extensive reputation leading to rights, such as unregistered trademark rights, based on that reputation. The disputed domain name consists of that well-known trademark, with the addition of the French generic word "pneus", a word describing the Complainant's main area of activity and serving to accentuate the likelihood of confusion between the disputed domain name and the Complainant's trademark.
The Panel therefore finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Panel accepts the Complainant's submission that there is no apparent basis upon which the Respondent can claim rights or legitimate interests in the disputed domain name. The Respondent is not licensed to use the MICHELIN trademark and is not commonly known by the name "Michelin". The use which is being made of the disputed domain name is neither legitimate nor fair, nor non-commercial. The use of the disputed domain name to direct to a portal page with pay-per-click links to the websites of the Complainant's competitors is not a use in connection with the bona fide offering of goods or services. It has been so held in countless prior decisions under the Policy of which Paris Hilton v. Deepak Kumar,WIPO Case No. D2010-1364 is but one example. This is, as noted by the panelist in that case, a case in which the disputed domain name:
"has been both registered and used with a view to taking unfair advantage of the reputation of the Complainant's trademarks".
The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
For the reasons set out above, the Panel is satisfied that at the time of registering the disputed domain name the Respondent, Milan Kovac was fully aware of the Complainant's trademark and the rights and reputation attaching to it, and that its registration was done with the intent to capitalize upon that reputation. The Respondent proceeded to use the disputed domain name in that way in an attempt intentionally to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant's mark. Among the many further indicators of bad faith are the facts that the Respondent Milan Kovac has sought to hide his identity behind a privacy protection service, he has failed to answer correspondence and appears to have given a false address, see for example Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
The evidence in this and fifteen prior UDRP decisions, indicates that the Respondent Milan Kovac is a serial cyber squatter and is a member of an ever-growing band of persons who register domain names which are confusingly similar to famous trademarks, with the intention of using them to generate pay-per-click royalties until such time as they are forced, like nomads, to move on to fresh pastures.
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith. 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.
Desmond J. Ryan AM
Sole Panelist
Dated: May 9, 2012
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