Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France.
Respondent is Fundacion Private Whois, Panama. 2. The Domain Name and Registrar
The disputed 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 9, 2013. On September 9, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 10, 2013, the Registrar transmitted by email to the Center its verification response confirming that 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”), 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 Respondent of the Complaint, and the proceedings commenced on September 12, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was October 2, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 3, 2013.
The Center appointed Tobias Cohen Jehoram as the sole panelist in this matter on October 24, 2013. 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
Complainant is a French multinational company which operates worldwide, having marketing operations in more than 170 countries, and having about 115,000 employees. Complainant owns numerous registrations for the trademark MICHELIN across the world. Complainant is the owner, inter alia, of the following trademark registrations for MICHELIN:
- MICHELIN, International trademark No. 348615, dated of July 24, 1968, duly renewed and covering goods in classes 1, 6, 7, 8, 9, 12, 16 and 20.
- MICHELIN, International trademark No. 816915, dated of August 27, 2003, duly renewed and covering services in classes 35, 37, 39 and 42.
Complainant registered the domain name on December 1, 1993, which reflects its registered trademarks.
Complainant became aware of Respondent’s registration of the disputed domain name, which resolves to a parking page displaying sponsored links related to i.e. spare parts, tires and notably those of Complainant’s and Complainant’s competitors as well as various commercial links. On July 4, 2013, Complainant has sent through legal counsel a cease-and-desist letter to the proxy service used by Respondent, followed by several reminders. Respondent did not reply.
The disputed domain name differs from Complainant’s domain name by the deletion of the letter “i” after the “m” of the latter domain name.
Complainant has not authorized the Respondent to use or register the disputed domain name .
The disputed domain name was registered on April 29, 2013. 5. Parties’ Contentions A. Complainant
Complainant contents that it owns the MICHELIN trademark, which is used around the world in connection with, inter alia, the automobile and tire manufacturing industries, as well as in connection with hotel and restaurant guides and maps publications. The MICHELIN trademark has a worldwide reputation.
The MICHELIN trademark has been recognized as “well-known” or “famous” under the Policy in several other decisions (see, for example Compagnie Génerale des Etablissements Michelin v. A Domain Privacy / Transure Enterprise Ltd., Host Master,WIPO Case No. D2013-0357; Compagnie Génerale des Etablissements Michelin v. PrivacyP and Kim Bum LLC, WIPO Case No. D2013-0181; and Compagnie Génerale des Etablissements Michelin v. A Domain Privacy and Transure Enterprise Ltd., WIPO Case No. D2013-0226).
Complainant owns the domain name and mainly communicates on the Internet via this website where Internet users can easily and quickly find information or benefit from other services.
Complainant argues in its Complaint that the disputed domain name is identical or
confusingly similar to the trademark MICHELIN. Citing numerous UDRP decisions. Complainant argues that the mere deletion of the letter “i” of its famous mark does not significantly affect the appearance or pronunciation of the disputed domain name. Complainant indicates that the disputed domain name is virtually identical and/or confusingly similar to Complainant’s trademark and that Respondent’s conduct constitutes so-called “typosquatting”.
Complainant states that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not affiliated with Complainant; Respondent has not been authorized or licensed to use the MICHELIN trademark; and Respondent is not commonly known by the name “Michelin”. Complainant contends that the use of the disputed domain name to direct Internet users towards parking websites for the purpose of generating revenue via advertised pay-per-click links does not give rise to use in connection with a bona fide offering of goods or services. The fact that Respondent has never claimed any legitimate rights in the disputed domain name and its failure to respond to the cease-and-desist letter supports Complainant’s position.
Lastly, Complainant contends that the disputed domain name was registered and is being used in bad faith. Registrant undoubtedly was aware that MICHELIN was a well-known mark prior to the registration of the disputed domain name . Bad faith is further shown by the use of the disputed domain name to divert Internet users and to direct them to a webpage displaying pay-per-clicks which are likely to provide revenues.
Complainant requests that the disputed domain name be transferred to Complainant. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
To succeed, Complainant must prove each of the following three elements set out in paragraph 4(a) of the Policy:
(i) the disputed domain name is identical of confusingly similar to a trademark in which Complainant has rights; and
(ii) 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.
Complainant bears the burden of proving these elements.
Paragraph 14(a) of the Rules provides that if Respondent does not submit a Response, the Panel shall, in the absence of exceptional circumstances, decide the dispute based on the Complaint. 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, supra; 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; and (2) whether the disputed domain name is identical or confusingly similar to such trademark.
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, paragraph 1.1, that if the complainant owns a trademark, then it generally satisfies the threshold requirement of having trademark rights. 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 gTLD “.com”. Additionally, the disputed domain name is virtually identical to Complainant’s domain name . See Compagnie Générale des Etablissements Michelin v. Terramonte Corp, Domain Manager,WIPO Case No. D2011-1951. 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.
The Panel therefore concludes that Complainant has established the first element of paragraph 4(a) of the Policy. C. Rights or Legitimate Interests
According to the consensus view in the 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 respondent enters no response. See also 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. Respondent is using the disputed domain name to direct Internet users towards parking websites for the purpose of generating revenue via advertised pay-per-click links, which does not give rise to use in connection with a bona fide offering of goods or services. These unrebutted contentions suffice to make out the prima facie case required of Complainant in connection with this element.
Therefore, the Panel finds that Complainant has established the second element of paragraph 4(a) of the Policy. 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 disputed 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 UDRP panels considering the mark (Compagnie Génerale des Etablissements Michelin v. A Domain Privacy / Transure Enterprise Ltd., Host Master, supra; Compagnie Génerale des Etablissements Michelin v. PrivacyP and Kim Bum LLC, supra; Compagnie Génerale des Etablissements Michelin v. A Domain Privacy and Transure Enterprise Ltd., supra and Compagnie Générale des Etablissements Michelin v. Terramonte Corp, Domain Manager, supra). Furthermore, the fact that Respondent has used the disputed domain name to host a page displaying sponsored links including a link to the website of Complainant, proves that Respondent is acquainted with the trademark MICHELIN. 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 use in paragraph 4(b)(iv) of the Policy.
The Panel therefore concludes that Complainant has successfully established the third element of paragraph 4(a) of 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 disputed domain name be transferred to Complainant.
Tobias Cohen Jehoram
Sole Panelist
Date: November 7, 2013
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