The Complainant is Etablissement Public du Musée du Louvre of Paris, France, represented by Alain Bensoussan SELAS, France.
The Respondent is D of Margate, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name (“Domain Name”) is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 18, 2014. On August 18, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. Also on August 18, 2014, the Registrar transmitted by email to the Center its verification response confirming the Respondent as the registrant and providing 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 proceeding commenced on August 22, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 11, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 18, 2014.
The Center appointed Wolter Wefers Bettink as the sole panelist in this matter on October 1, 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
The Complainant is the owner of, inter alia, the French trademark LOUVRE (no. 99776026, filed on February 18, 1999 and registered on March 3, 2000) and Community Trade Mark No. 9856923, filed on March 31, 2011 and registered on October 27, 2011 (hereafter the “LOUVRE Trademarks”). Furthermore, the Complainant is the owner of the French trademark LOUVRE ABOU DABI (no. 073526737, filed on September 26, 2007 and registered on February 29, 2008) and various corresponding registrations in the United Arab Emirates (hereafter the “LAD Trademarks”).
Louvre is the name of the world famous museum in Paris, France.
On March 6, 2007 it was announced that the Louvre Museum had concluded an agreement with the United Arab Emirates to cooperate on a new art museum to be built in Abu Dhabi, the capital of the United Arab Emirates, under the name of Louvre Abu Dhabi.
The Domain Name was registered on April 11, 2008. 5. Parties’ Contentions A. Complainant
The Complainant submits that the Domain Name is confusingly similar with the LOUVRE Trademarks, because it consists of the famous wordmark LOUVRE and the geographic name Abu Dhabi. The Domain Name is also confusingly similar with the LAD Trademarks as the modification of the order of the words does not prevent the reader from understanding that this refers to the LOUVRE Trademarks and the future museum in Abu Dhabi.
According to the Complainant the Respondent has no rights or legitimate interests in respect of the Domain Name, since its name does not have any link with the Louvre museum nor with the town of Abu Dhabi. The Respondent is not known by these words. In addition, the Complainant states that the Respondent used the Domain Name (through a third party) as a parking page containing links to various other websites, presumably to obtain commercial gain, concerning, inter alia, hotels, restaurants and cultural events in Abu Dhabi and Paris. According to the Complainant, the website under the Domain Name has gone offline after a formal notice was sent by the Complainant to the third party operating the website.
The Complainant brings forward that the Domain Name was registered and is being used in bad faith, because the Respondent knew or should have known that the Domain Name was infringing the Complainant’s rights in the world famous LOUVRE Trademarks, while the plans to open a museum under the name Louvre Abu Dhabi was well published in the international press (including the press in the United Kingdom where the Respondent is located) well before the Respondent registered the Domain Name on April 11, 2008.
In addition, the Domain Name has been used in bad faith according to the Complainant because it was used (until it was taken down) for a website which contained links to fields identical or similar to the core activities of the Louvre museum (culture, art, education). B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has demonstrated that it has rights in both the LOUVRE Trademarks (the first of which was registered in France since 1999) and the LAD Trademarks (the first of which was first filed on September 26, 2007 in France). The Panel notes that the Louvre Museum is over 200 years old and is one of the largest and foremost art musea in the world, with a worldwide reputation.
The Domain Name and the trademarks of the Complainant are confusingly similar, first because the Domain Name consists of the world famous LOUVRE Trademarks and the geographical name Abu Dhabi. This does not prevent the Domain Name from creating a likelihood of confusion with the LOUVRE Trademarks of the Complainant (see Playboy Enterprises International, Inc. v. Zeynel Demirtas,WIPO Case No. D2007-0768 ). In addition, the Domain Name is confusingly similar to the LAD Trademarks, which similarity is not offset by the different location of the element LOUVRE and the different location and spelling of the element ABOU DABI (versus ABU DHABI).
Therefore, the Panel concludes that the Domain Name is confusingly similar to the Complainant’s trademarks. B. Rights or Legitimate Interests
The Complainant has to make out an un-rebutted prima facie case that the Respondent does not have rights or legitimate interests in the Domain Name (WIPO Overview of WIPO Panel views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.1).
The LOUVRE Trademarks are world famous mark, the oldest of which predates the registration of the Domain Name by almost nine years. The Respondent’s name does not have any link with the LOUVRE Trademarks, nor with the town of Abu Dhabi. In addition, there is no evidence that the Respondent is known under the Domain Name.
Based on the evidence provided by the Complainant it is clear that, until a formal notice was sent by the Complainant, a third party used a website under the Domain Name as a parking page with links to, inter alia, hotels in Abu Dhabi and Paris and various restaurants, cultural events and places of interest in Paris. Therefore, these pages contained commercial information relating to goods of third parties. Such trading on the goodwill of a trademark does not constitute a bona fide offering of goods and services, nor does it constitute a legitimate noncommercial or fair use (e.g. Swarovski Aktiengesellschaft v. N/A, delu xei,WIPO Case No. D2013-0708, ).
The Panel observes that this is also the case if the commercial information or the links on the parking page profit a third party, in particular the operator of an advertising revenue arrangement, and that under such arrangements it is likely that the Respondent receives a share of the advertising revenue generated by the operator (see Villeroy & Boch AG v. Mario Pingerna,WIPO Case No. D2007-1912, and Rolex Watch U.S.A., Inc. v. Vadim Krivitsky,WIPO Case No. D2008-0396, ).
On the basis of the foregoing, the Panel finds that the Respondent does not have rights or legitimate interests in the Domain Name. C. Registered and Used in Bad Faith
In the view of the Panel, it is inconceivable that the Respondent was not aware of the world famous LOUVRE Trademarks when registering the Domain Name. Furthermore, in view of the extensive and worldwide publicity in 2007 and early 2008 surrounding the announcement of the plans to construct a museum in Abu Dhabi under the name Louvre Abu Dhabi, it is very likely that the Respondent was or should have been aware thereof when it registered the Domain Name on April 11, 2008.
The Panel therefore concludes that the registration of the Domain Name was done in bad faith.
In view of the above, it is clear that the Respondent has chosen the Domain Name in order to take advantage of the reputation of the Complainant’s LOUVRE Trademarks by attracting customers to its website under the Domain Name who assume that this website is either provided by or has been approved of by the Complainant. By allowing a third party to use the website under the Domain Name as a parking page with advertisements for and links to commercial offerings of goods and services which are partly complementary to the services offered by the Complainant - visitors to the Louvre Museum are often also seeking a hotel room and restaurants and interested in other cultural events - the Respondent intended to create a likelihood of confusion among the public as to the source, sponsorship, affiliation or endorsement of the Respondent’s website (see, e.g., Sanofi v. Hka c/o Dynadot Privacy, Case No. D2014-0829, ).
This is not changed by the fact that the website under the Domain Name has gone offline after the Complainant formally noticed its objections to the website operator, because it may be reactivated at any time and this threat continues to hang over the Complainant’s head (see, e.g., Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393, ).
On the basis of the above the Panel concludes that the Domain Name has been 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.
Wolter Wefers Bettink
Sole Panelist
Date: October 15, 2014
Full & Egal Universal Law Academy