The Complainants are Afrimedia, M. Constant Nemale of Saint Cloud, France, Le Plessis-Trévise, France, represented by LS Avocats, France.
The Respondent is Tinno Communication and Services, M. Tinno Mbang Bang of Douala, Littoral, Cameroon. 2. The Domain Name and Registrar
The disputed domain name is registered with BB Online UK Ltd. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 17, 2014. On February 18, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 24, 2014, 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 February 27, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 19, 2014. The Response was filed with the Center on March 19, 2014.
The Center appointed Christopher J. Pibus as the sole panelist in this matter on April 4, 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.
On April 24, 2014, Panel Order No. 1 ordered the Complainants to provide supplemental evidence in support of the Complaint by April 28, 2014. The Complainants did not file any further evidence by the stipulated deadline. The Respondent was also ordered by Panel Order No. 1, to provide supplemental responding evidence by May 2, 2014. The Respondent did not file any further evidence by the stipulated deadline. 4. Panel's Preliminary Comments
As a preliminary issue, the Panel noted significant deficiencies in the Complaint and Response, and issued a Panel Order directing both the Complainants and the Respondent to file supplemental evidence to provide a more complete record addressing the key elements under the Policy. Neither the Complainants nor the Respondent filed further evidence, or any response to the Panel's Order.
In these circumstances, the Panel's ability to make a reasoned decision has been impaired by the incompleteness of the evidentiary record. The parties must bear the consequences of their deficient submissions, and their failure to respond to the direction seeking additional evidence. 5. Factual Background
The Complainants operate a news channel in association with the trademark AFRICA 24, A24 and AFRICA 24 NEWS-TALK-BUSINESS AND LIVE 24/7. The Complainants own several trademark registrations, including:
- African trademark No. 3200800773 AFRICA 24, dated March 31, 2008;
- Community trademark ("CTM") No. 8337651 AFRICA 24, dated September 18, 2009;
- CTM No. 8337628 A24, dated September 18, 2009;
- French trademark No. 3552801 AFRICA 24 NEWS-TALK-BUSINESS AND LIVE 24/7, dated January 31, 2008.
The Complainants also own domain name registrations registered on April 12, 2007 and registered on January 4, 2011. These domain names revert to websites which provide news content about events in Africa.
The Complainants' channel Africa 24 is broadcast in Africa, Europe and the United States.
The disputed domain name was registered on July 10, 2012. At the time the complaint was filed, the disputed domain reverted to a website providing news content about Africa. 6. Parties' Contentions A. Complainants Identical or Confusingly Similar
The Complainants submit that they own trademark registrations for the trademark AFRICA 24, including the following Registrations:
- African trademark No. 3200800773 AFRICA 24, dated March 31, 2008;
- CTM No. 8337651 AFRICA 24, dated September 18, 2009;
- CTM No. 8337628 A24, dated September 18, 2009;
- French trademark No. 3552801 AFRICA 24 NEWS-TALK-BUSINESS AND LIVE 24/7, dated January 31, 2008.
The Complainants contend that the disputed domain name is confusingly similar to the Complainants' registered trademark AFRICA 24. The addition of the word "monde" which means "world" does not distinguish the disputed domain name from the Complainants' AFRICA 24 trademark. Rights and Legitimate interests
The Complainants state that French law prohibits the reproduction of a registered trademark in a domain name, where there is a likelihood of confusion. Registered and Used in Bad Faith
The Complainants admit that they do not know the circumstances of the creation of the disputed domain name, but contend that the Respondent likely acquired the disputed domain name either (1) for purpose of selling, renting or otherwise transferring the disputed domain name to the Complainants for valuable consideration in excess of out-of-pocket expenses; or (2) in order to prevent the Complainants from using the disputed domain name; or (3) for the purpose of disrupting the business of the Complainants, all for the purposes of monetary gain. B. Respondent
The Respondent submits that the disputed domain name was not registered in bad faith, and demonstrates that the disputed domain name is used in association with an active website which provides online news.
The Respondent submits that the website at the disputed domain name, "www.", has an average of 800 visitors per day originating from more than 100 countries around the world. The Respondent claims that most of the website visitors come from the United States of America, France and thirdly Cameroon, which reflects its goal to provide news about African issues to the world at large. 74% of the visitors connect to the site using direct address/bookmark or link, 15.8% from an external link, i.e., Facebook, and only 9.9% come from a search engine.
The Respondent further contends that the trademark AFRICA 24 is a generic term that is commonly used in Africa.
The Respondent claims that the website "www." displays information in a way which is visually different from the Complainants' website and tv channel. The Respondent contends that it has never pretended to have any connection with the Complainants.
The Respondent has never attempted to sell the disputed domain name, and has in fact spent 2 years developing the website and its related business. 7. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) The disputed domain name is identical or confusingly similar to the trademark or service mark in which the Complainants have rights;
(ii) The 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. A. Identical or Confusingly Similar
The Panel finds that the Complainants do own registered trademark rights in the mark AFRICA 24, in view of the trademark registrations listed in paragraph 5 above.
In this case, the disputed domain name has added the word "monde" to the elements AFRICA 24. The addition of a descriptive word, such as "world" or "monde" would typically not be sufficient to distinguish the disputed domain name from a registered trademark. In these circumstances, where the registered trademark is made up of 2 common if not generic terms, the addition of a descriptive word such as "monde" may serve to create a small distinction.
However, when taken as a whole, the Panel finds that the addition of the word "monde" is not sufficient to distinguish the domain name from the registered trademarks, in that the dominant elements of the disputed domain name are in fact identical to the Complainants' registered trademark AFRICA 24.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
In view of the finding with respect to bad faith, the Panel need not make a finding with respect to rights and legitimate interests. C. Registered and Used in Bad Faith
In view of the nature of the submissions and evidence filed in this proceeding, the Panel finds that the Complainants have not satisfied the requirement under paragraph 4(a)(iii) of the Policy.
In particular, the Panel notes the failure of the Complainants to lead any evidence about bad faith, aside from speculation about Respondent's "likely" intentions. The Complainants actually admit that they do "not know the circumstances of creation [of] the domain name." The Complainants failed to provide any tangible evidence of the extent of their reputation in the trademarks in question, when such evidence surely was available to them. In these circumstances, when a Respondent has an active operating business, it is important for a Complainant to provide evidence and supporting arguments that directly relate to the issues under paragraph 4(a)(iii) of the Policy. The Complainants' failure to do so means that this Complaint must be dismissed, as the required proof of bad faith has not been established.
As noted above, the Panel is constrained by the incompleteness of the submissions and evidence in this proceeding, and as noted above, neither party responded to the Panel's request for further information. Although Complainants have failed to establish the requisite elements for their Complaint on the present record, the Panel wishes to make it clear that other remedies may be available to the Complainants in a different forum, and that nothing in this Decision should be understood as providing a definitive finding on the respective trademark rights of the parties, beyond the narrow question determined under this proceeding.
The Panel notes that the Complainants allege the Respondent's registration of the disputed domain name is against French law; as the Policy is confined to determining whether the elements in paragraph 4(a) are met, the instant Decision is without prejudice to any court proceedings. 8. Decision
For the foregoing reasons, the Complaint is denied.
Christopher J. Pibus
Sole Panelist
Date: May 5, 2014
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