The Complainant is Louis Dreyfus Trademarks B.V. of Amsterdam, Netherlands, represented by Sodema Conseils S.A., France.
The Respondent is David Rosenberg, Louis Dreyfus Commodities of Vienna, Austria. 2. The Domain Name and Registrar
The disputed domain name is registered with World4You Internet Services GmbH (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on December 23, 2014. On December 23, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 2 and 12, 2015, 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.
According to the information provided to the Center by the concerned registrar, the language of the registration agreement for the disputed domain name is German. Accordingly, on January 12, 2015, the Center invited the Complainant to provide at least one of the following: 1) satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceedings should be in English; or 2) submit the Complaint translated into German; or 3) submit a request for English to be the language of the administrative proceedings.
On January 12, 2015, the Complainant submitted a request for English to be the language of the administrative proceedings, to which the Respondent did not reply.
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 in English and in German the Respondent of the Complaint, and the proceedings commenced on January 22, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was February 11, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 12, 2015.
The Center appointed Philippe Gilliéron as the sole panelist in this matter on February 20, 2015. 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 belonging to the Louis Dreyfus Group, a group involved in agricultural and other commodities as well as shipping and finance to support these activities.
The Complainant holds the CTM No. 006337901 LOUIS DREYFUS that was registered on February 11, 2008 in classes 1, 3, 4, 6, 7, 12, 19, 22, 23, 24, 29, 30, 31, 32, 35, 36, 37, 38, 39, 40 and 42 of the Nice Classification, with a priority date as of September 26, 2007.
The Complainant carries out its online activities through the domain name that was registered on September 9, 1997. It also holds numerous domain names all over the world that consist in all or in part of the trademark LOUIS DREYFUS.
The disputed domain name was on September 11, 2014. 5. Parties’ Contentions A. Complainant
The Complainant first affirms that the disputed domain name is confusingly similar to its trademark LOUIS DREYFUS as the association with the generic term “global” does not exclude the likelihood of confusion resulting from the incorporation of the Complainant’s trademark in the disputed domain name, all the more than the Complainant holds numerous domain names consisting in part of the trademark LOUIS DREYFUS with a generic term added to the trademark.
The Complainant then asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent has neither been licensed nor authorized in any way by the Complainant to use the LOUIS DREYFUS trademark. The use made by the Respondent of the website attached to the disputed domain name would also underline the absence of any right or legitimate interests of the Respondent in respect of the disputed domain name.
The Complainant indeed finally considers that the use made by the Respondent of the website attached to the disputed domain name is a clear evidence that the disputed domain name was registered and is being used in bad faith. The website attached to the disputed domain name reproduces the Complainant’s logo as well as the layout of its official website including part of its content. In the Complainant’s opinion, the Respondent has used the disputed domain name to direct users to a website offering competitive services to the Complainant’s one by creating a likelihood of confusion with Complainant and have users believe that the website attached to the disputed domain name was affiliated to Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “[…] decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:
(i) The disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or a service mark in which the Complainant has 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. Language of the Proceedings
On January 12, 2015, the Center sent an email to the Complainant informing it that the language of the Registration Agreement in this case is German and that the Complaint was filed in English. As a result, the Center invited the Complainant to provide at least one of the following: 1) satisfactory evidence of an agreement between the Complainant and the Respondent to the effect that the proceedings should be in English; or 2) submit the Complaint translated into German; or 3) submit a request for English to be the language of the administrative proceedings.
On the same date, the Complainant submitted a request for English to be the language of the administrative proceedings, thus reiterating the request submitted to that effect in its Complaint, to which the Respondent, having defaulted, did not oppose.
Absent any Response or reaction from the Respondent, there is no direct information whether the Respondent understands the English language. Considering that the Complaint has however been duly notified to the Respondent by the Center in both English and German in accordance with the contact information available to the Complainant and to the Center, the Panel considers that the Respondent had ample opportunity to oppose the proceedings to be held in English if he wanted to do so. Absent any Response from the Respondent, the Panel sees no reason to either request the Complaint to be translated in German or to render its decision in German, all the more than the website attached to the disputed domain name is entirely drafted in English and targeted to an international community, leaving little doubt as to the Respondent’s understanding of the English language. Considering the above, the Panel accepts the Complaint in English and shall render its decision in English. B. Identical or Confusingly Similar
According to the Policy, paragraph 4(a)(i), the Complainant has to prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant proves to be the holder of a CTM consisting of the terms LOUIS DREYFUS.
UDRP panels widely agree that incorporating a trademark into a domain name can be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark for purpose of the Policy (see, e.g., Uniroyal Engineered Products, Inc. v. Nauga Network Services,WIPO Case No. D2000-0503; Thaigem Global Marketing Limited v. Sanchai Aree,WIPO Case No. D2002-0358; and F. Hoffmann-La Roche AG v. Relish Entreprises, WIPO Case No. D2007-1629).
This is all the more true when the inserted trademark consists of the dominant part of the disputed domain name and that the added elements are merely descriptive.
Such happens to be the case here, where the terms “global” is a mere descriptive term that does not prevent the likelihood of confusion resulting from the entire incorporation of the Complainant’s trademark in the disputed domain name, all the more considering the fact that the Complainant proves to be the holder of numerous domain names consisting of the addition to the trademark LOUIS DREYFUS of a descriptive term.
As a result, the Panel considers paragraph 4(a)(i) of the Policy to be satisfied. C. Rights or Legitimate Interests
According to the Policy, paragraph 4(a)(ii), the Complainant has to demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name.
As the panel stated in Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624, demonstrating that the respondent has no rights or legitimate interests in the domain name “would require complainant to prove a negative, a difficult, if not impossible, task”. Thus, in that decision, the panel opined that “[w]here a complainant has asserted that the respondent has no rights or legitimate interests in respect of the domain name, it is incumbent upon the respondent to come forward with concrete evidence rebutting this assertion”. Following that decision, subsequent panels developed a consensual view that it is deemed sufficient for a complainant to make a prima facie case that the respondent lacks rights or legitimate interests in a domain name. Once a prima facie case has been made, it is the respondent’s burden to demonstrate its rights or legitimate interests. If it fails to do so, the complainant is deemed to have satisfied to paragraph 4(a)(ii) of the Policy (see, e.g., paragraph 2.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)).
In the present case, the Complainant is the owner of the LOUIS DREYFUS trademarks. The Complainant has no business or other relationships with the Respondent, who has not been duly authorized by the Complainant to use its trademarks.
The Complainant thus has made a prima facie case showing that the Respondent has no rights or legitimate interests in the disputed domain name.
On his side, the Respondent has not answered to the Complaint.
Considering the absence of a Response and the fact that the Respondent, based on the available record, is neither commonly known by the disputed domain name, nor has made a legitimate noncommercial or fair use of the disputed domain name as shall be demonstrated below under the section “registered and used in bad faith”, the Panel finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
Consequently, in light of the above, the Panel considers paragraph 4(a)(ii) of the Policy to be fulfilled. D. Registered and Used in Bad Faith
For a complaint to succeed, a panel must be satisfied that a domain name has been registered and is being used in bad faith (Policy, paragraph 4(a)(iii)).
Bad faith requires the Respondent to be aware of the Complainant’s trademarks. In the present case, there is no doubt that the Respondent was fully aware of the Complainant’s trademark when it registered the disputed domain name.
The Complainant provides ample evidence that the disputed domain name was registered with the sole purpose of having users believe that they were connecting to a website affiliated to the Complainant. The Respondent’s website content reproduces the Complainant’s logo as well its layout and content itself to a large extent, which amply demonstrates the Respondent’s bad faith in this case.
It thus appears clear to the Panel based upon the overall circumstances of the case that, in accordance with paragraph 4(b) of the Policy, the disputed domain name was registered and is being “used to intentionally attract, for commercial gain, Internet users to a website or other online location, by creating a likelihood of confusion with the complainant’s name or mark as to the source, sponsorship, affiliation, or endorsement of that we site or location or of a product or service on that web or location”.
As a result, the Panel is of the opinion that the disputed domain name was registered and is being used in bad faith under the paragraph 4(a)(iii) 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 the Complainant.
Philippe Gilliéron
Sole Panelist
Date: March 10, 2015
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