Complainant is Reunica of Levallois Perret Cedex, France, represented by AARPI Clairmont Avocats, France.
Respondent is Contact Privacy Inc. Customer 0133960105 of Toronto, Ontario, Canada / ICS Inc. of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name is registered with Tucows Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 31, 2014. On January 31, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 31, 2014, 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 Center sent email communications to Complainant on February 6, 2014 providing the registrant and contact information disclosed by the Registrar, inviting Complainant to submit an amendment to the Complaint, and requesting to confirm the removal of references to Restriction Dispute Resolution Policy for .BIZ and the election for mutual jurisdiction. Complainant filed an amended Complaint on February 11, 2014.
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 Respondent of the Complaint and the amended Complaint, and the proceedings commenced on February 12, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 4, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 5, 2014.
The Center appointed Flip Jan Claude Petillion as the sole panelist in this matter on March 11, 2014. 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 non-profit group in the field of social protection (health and supplementary pension system). Complainant is the holder of a number of trademarks consisting of, or including the words REUNICA in France and the European Union which it uses in connection to its services. Complainant inter alia shows to be the holder of the following registered REUNICA trademarks:
- REUNICA, registered as a word mark in France, under number 3115484 on August 3, 2001, and duly renewed;
- REUNICA, registered as a Community trademark (word), under number 10312429 on April 18, 2012.
The disputed domain name was registered on January 3, 2007 and resolves to a parking page, featuring sponsored links and a search engine which only gives “sponsored listings” as a result. 5. Parties’ Contentions A. Complainant
Complainant considers the disputed domain name to be identical or confusingly similar to the trademarks and service marks in which it claims to have rights. Complainant further claims that Respondent has no rights or legitimate interest in respect of the disputed domain name. Finally, Complainant considers that the domain name was registered and is being used in bad faith. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 15 of the Rules provides that the Panel is to decide the Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
The onus is on Complainant to make out its case and it is apparent, both from the terms of the Policy and the decisions of past UDRP panels, that Complainant must show that all three elements set out in paragraph 4(a) of the Policy have been established before any order can be made to transfer the disputed domain name. As the proceedings are civil, the standard of proof is the balance of probabilities.
Thus for Complainant to succeed it must prove, within the meaning of paragraph 4(a) of the Policy and on the balance of probabilities, that:
1. The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
2. Respondent has no rights or legitimate interests in respect of the disputed domain name; and
3. The disputed domain name has been registered and is being used in bad faith.
The Panel will therefore deal with each of these requirements in turn. A. Identical or Confusingly Similar
Complainant must first establish that there is a trademark or service mark in which it has rights. Since Complainant is the holder of REUNICA trademark registrations it is clearly established that there is a trademark in which Complainant has rights.
The Panel considers the only difference between the disputed domain name and Complainant’s trademark is the addition of an accent on the letter “e”. According to the Panel, the addition of an accent on the letter “e” is insufficient to avoid confusing similarity, as such minor modifications to a trademark do not diminish in any significant way the confusing similarity between the disputed domain name and Complainant’s trademark (see Fortuneo v. Johann Guinebert, WIPO Case No. D2001-0781, finding the domain name confusingly similar with the FORTUNEO trademark).
Therefore, the Panel finds that the disputed domain name is confusingly similar with Complainant’s REUNICA trademark. B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, Complainant has the burden of establishing that Respondent has no rights or legitimate interests in respect of the disputed domain name.
It is well established that it is sufficient for Complainant to make a prima facie showing that Respondent has no rights or legitimate interests in the disputed domain name in order to place the burden of rebuttal on Respondent. (See Champion Innovations, Ltd. v. Udo Dussling (45FHH),WIPO Case No. D2005-1094; Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110).
The Panel notes that Respondent has not been commonly known by the disputed domain name and that Respondent has not acquired trademark or service mark rights in RÉUNICA. Respondent’s use and registration of the disputed domain name was not authorized by Complainant. There are no indications that a connection between Complainant and Respondent existed. In addition, the fact that Respondent did not reply to Complainant’s contentions further indicates the lack of any rights or legitimate interests in the disputed domain name. (See Nordstrom, Inc. and NIHC, Inc. v. Inkyu Kim,WIPO Case No. D2003-0269; The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064, finding an adverse inference from the respondent’s failure to provide any explanation or rationale for its use of the domain name for its websites).
Therefore, it is established that Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and that it is being used in bad faith (see e.g., Telstra Corporation Limited v. Nuclear Marshmallow,WIPO Case No. D2000-0003; Control Techniques Limited v. Lektronix Ltd,WIPO Case No. D2006-1052).
Policy, paragraph 4(b) provides a non-exclusive list of circumstances, any one of which shall be evidence of bad faith registration and use, including the use of a domain name for intentionally attempting to attract, for commercial gain, Internet users to a website or other on-line location, by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement of a respondent’s website or location or of a product or service on the website or location (Policy, paragraph 4(b)(iv)).
In the present case, Respondent is using the disputed domain name that is essentially identical to Complainant’s trademark, which has no dictionary meaning for a website that features sponsored links and a search engine which only gives “sponsored listings” as a result. Furthermore, the website contains search terms that relate to Complainant’s business (e.g., “ASSURANCE-VIE”, “MUTUELLE COMPLEMENTAIRE”, “MUTUELLE DENTAIRE”) and refers to the businesses of Complainant’s competitors. The Panel also notes that Respondent has taken active steps to conceal its identity and has failed to respond to the Complaint. According to the Panel, this shows that Respondent has registered and is using the disputed domain name to intentionally attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with Complainant’s trademark as to the source, sponsorship, affiliation or endorsement of the website.
Therefore, it is established that the disputed domain name 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 Complainant.
Flip Jan Claude Petillion
Sole Panelist
Date: March 27, 2014
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