The Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France.
The Respondent is Fundacion Private Whois of Panama City, Panama. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with I Corp. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on September 25, 2012. On September 25, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 1, 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 October 2, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 22, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 23, 2012.
The Center appointed Steven A. Maier as the sole panelist in this matter on November 8, 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 a company registered in France. It has interests worldwide in the automotive and tyre industries, as well as in hotel and restaurant guides, maps and publications.
The Complainant is the owner of numerous registrations for the trademark MICHELIN including Community Trade Mark number 4836359 registered on January 4, 2006 and International Trade Mark number 348615 registered on July 24, 1968, in both cases for numerous classes of goods and services.
The Complainant owns and operates websites linked to (among others) the domain names and .
The Domain Name was registered on February 19, 2006.
At the date of the Center’s Notification of the Complaint to the Respondent, the Domain Name resolved to a website at “www.”, being a directory website which included links to providers of goods and services relating in particular to the automotive industry. 5. Parties’ Contentions A. Complainant
The Complainant submits that the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant is the owner of the trademark MICHELIN, including the registrations referred to above, which enjoys a worldwide reputation. The Domain Name reproduces the Complainant’s mark with the addition of the term “training”, which is generic in nature and does not serve to dispel any likelihood of confusion. Furthermore the Complainant itself offers training services, e.g. for truck, earthmoving and agricultural products, which aggravates the confusion caused by the Respondent’s adoption of the Domain Name.
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name. In particular, the Complainant states that the Respondent is not affiliated with the Complainant in any way and has not been authorised by the Complainant to use its mark MICHELIN or to register the Domain Name. The Respondent has never been known by the name MICHELIN. The registration of the well-known MICHELIN mark long preceded the registration of the Domain Name and the Respondent cannot pretend it intended to use the Domain Name for any legitimate reason. Nor is there any evidence of any use by the Respondent of the Domain Name for any bona fide purpose. On the contrary, the Respondent is using the Domain Name to link to a parking page, which includes links to the Complainant’s competitors, for the purpose of taking unfair advantage of the Complainant’s goodwill. Finally, the Respondent’s use of a privacy shield to hide its identity is evidence of its lack of rights or legitimate interests in the Domain Name.
The Complainant submits that the Domain name has been registered and is being used in bad faith. The Complainant contends that the Respondent must have been aware of its well-known mark MICHELIN, which has a worldwide reputation, at the time it registered the Domain Name. Furthermore, the combination of that trademark with the generic term “training”, which describes one of the Complainant’s activities, demonstrates that the Respondent was well aware of the Complainant’s mark. It is to be inferred that the Respondent registered the Domain Name in order to imitate the Complainant’s official domain name, .
So far as use of the Domain Name is concerned, it is impossible that the Respondent was unaware of the Complainant’s famous MICHELIN mark, which enjoys a substantial reputation worldwide. The Respondent is using the Domain Name, incorporating the mark, to direct Internet users to parking page which includes links to the Complainant’s competitors. It is inevitable that a number of Internet users who wish to visit the Complainant’s websites will end up at the Respondent’s site, and a likelihood of confusion must be presumed from the fact that the Respondent has simply reproduced the Complainant’s famous mark. Accordingly, the Respondent is using the Domain Name 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, sponsorship, affiliation, or endorsement of its website. The Respondent is therefore using the Domain Name to take unfair advantage of the Complainant’s goodwill in its famous trademark, which constitutes use in bad faith.
The Complainant also relies on the fact that it made numerous attempts to contact the Respondent with regard to the Domain Name, by way of a letter and numerous reminders, but all such attempts at communication were ignored. The Complainant contends that this is further evidence of bad faith on the part of the Respondent.
The Complainant seeks the cancellation of the Domain Name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
In order to succeed in its Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant 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.
Even in a case where the Respondent has failed to reply to the Complaint, it is still necessary for the Complainant to establish a case on each of the above elements. A. Identical or Confusingly Similar
The Complainant has established that it is the owner of the registered trademark MICHELIN in various territories for numerous classes of goods and services. It has also established that its mark has acquired substantial goodwill in the fields of automotive services and restaurant guides in particular, and that it offers training services under the mark. Accordingly the Panel finds that the Complainant has rights in the mark MICHELIN for the purposes of paragraph 4(a) of the Policy. The Panel accepts the Complainant’s contention that the term MICHELIN is the distinctive element of the Domain Name and that the additional term “training” is generic in nature and does not serve to dispel any likelihood of confusion between the trademark and the Domain Name. Indeed, the addition of that term is liable to increase the risk of confusion in this case. Accordingly the Panel finds that the Domain Name is confusingly similar to a trademark or service mark in which the Complainant has rights. B. Rights or Legitimate Interests
The Panel accepts the Complainant’s contentions that it is not affiliated with the Respondent in any way and did not authorise the Respondent to use its MICHELIN trademark or to register the Domain Name. There is no evidence that the Respondent has commonly been known by the Domain Name or that the Respondent is making legitimate noncommercial or fair use of the Domain Name. Nor is there any evidence that, before becoming aware of the dispute, the Respondent used, or made demonstrable preparations to use, the Domain Name in connection with a bona fide offering of goods and services. On the contrary, the Panel accepts the Complainant’s contention that, in all the circumstances of the case, the Respondent must be inferred to have known of the Complainant’s well-known mark and to have chosen it deliberately with the object of taking unfair advantage of the Complainant’s goodwill. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests with regard to the Domain Name. C. Registered and Used in Bad Faith
Again, the Panel accepts the Complainant’s submission that, at the time of registration of the Domain Name, the Respondent was overwhelmingly likely to have been aware of the Complainant’s trademark and to have chosen the Domain Name with the objective of impersonating the Complainant.
Further, paragraph 4(b)(iv) of the Policy provides that the following circumstance, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
The Respondent is using the Domain Name for the purposes of a directory website which includes links to businesses including competitors of the Complainant. The Panel finds that, by the Respondent’s use of the Domain Name, the Respondent is intentionally attempting to attract Internet users who intend to access a website operated or endorsed by the Complainant to the Respondent’s own directory website. Further, the Respondent is seeking to take unfair advantage of the Complainant’s goodwill by profiting from the confusion so caused.
The Panel therefore concludes accordingly that the Domain Name was 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 Domain Name, , be cancelled.
Steven A. Maier
Sole Panelist
Date: November 21, 2012
Full & Egal Universal Law Academy