The Complainant is Société des Cuirs de Paris, of Paris, France, represented internally.
The Respondent is Bruno Vernay, of Ugine, France. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom, Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed in French with the WIPO Arbitration and Mediation Center (the “Center”) on April 16, 2015. On April 17, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 18, 2015, 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 an email communication to the Complainant on April 23, 2015, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The same day, the Center sent a notice to the Complainant stating that the language of the Registration Agreement as confirmed by the Registrar was English. The Complainant filed an amended Complaint in English on April 24, 2015.
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 the Respondent of the Complaint, and the proceedings commenced on April 29, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 19, 2015. The Center received a letter in French from the Respondent by post on April 27, 2015. The Respondent did not submit any formal response. Accordingly, the Center notified the Respondent’s default on May 20, 2015.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on May 27, 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 French company established in 2008, trading in ready-to-wear and accessories in leather and fur, and having its registered office and retail shop on Avenue de la Porte de Clignancourt in Paris.
The Complainant is the owner of the French trademark CUIR PARIS registered under No. 4152591, filed on January 29, 2015 and currently in force (the “Mark”).
The disputed domain name was registered on December 21, 2014. 5. Parties’ Contentions A. Complainant
(i) The disputed domain name is identical to or confusingly similar with the Mark.
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name and damages the image of the Complainant’s website accessible through the domain name registered by the Complainant on December 10, 2013.
(iii) The disputed domain name was registered and is used in bad faith by a competitor trading one hundred meters away from the Complainant’s shop.
(iv) The Complainant requests that the disputed domain name be transferred to the Complainant. B. Respondent
The Respondent did not submit any formal response to the Complaint, but sent a letter in French to the Center on April 27, 2015, alleging, inter alia, that the Complaint is meritless, and threatening to sue in France in the event of an abusive transfer of the disputed domain name. 6. Discussion and Findings A. Language of the Proceeding and other procedural aspects
Paragraph 11(a) of the Rules provides that “Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The Registrar confirmed that the language of the Registration Agreement of the disputed domain name is English. Noting that the Complainant translated the Complaint into English, the Panel determines that pursuant to paragraph 11(a) of the Rules, the language of the proceeding is English.
Under paragraph 4(a) of the Policy, it is the Complainant’s burden to establish that all three of the required criteria for a transfer of the disputed domain name have been met.
In this case, the Panel finds that the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant, as is described in further detail below. In particular, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making a noncommercial or fair use of the disputed domain name.
Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s argument that the Respondent has acted in bad faith. B. Requirements of paragraph 4(a) of the Policy (i) Identical or Confusingly Similar
In comparing the disputed domain name with the Mark, the Panel finds that the Mark is replicated entirely in the disputed domain name.
The consensus view of UDRP panels is that the registration of a domain name before a complainant acquires trademark rights in a name does not prevent a finding of identity or confusing similarity under the UDRP. The UDRP makes no specific reference to the date on which the holder of the trademark or service mark acquired rights. See in this regard Madrid 2012, S.A. v. Scott Martin-MadridMan Websites,WIPO Case No. D2003-0598; Stoneygate 48 Limited and Wayne Mark Rooney v. Huw Marshall,WIPO Case No. D2006-0916; Esquire Innovations, Inc. v. I c/o Whois Identity Shield; and Vertical Axis, Inc, Domain Administrator,WIPO Case No. D2007-0856).
It is also well established that the generic Top-Level Domain such as “.com” does not generally affect the assessment of the domain name for the purpose of determining identity or confusingly similarity.
Consequently, the Panel finds that the similarity between the disputed domain name and the Mark is such as to create confusion for Internet users.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy. (ii) Rights or Legitimate Interests
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that with regard to paragraph 4(a)(ii) of the Policy, this could result in the often impossible task of proving a negative proposition, requiring information that is primarily, if not exclusively, within the knowledge of a respondent.
Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden of production of evidence to the respondent to come forward with evidence of a right or legitimate interest in a domain name, once the complainant has made a prima facie showing. See Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270.
There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name. In particular, the Respondent could have chosen a domain name sufficiently setting it apart from the Complainant’s corporate name and from its domain name .
While this Panel notes that “cuir” and “Paris” may respectively be considered in some respects to be generic terms (in that they mean “leather” and “Paris” in French) the website at the disputed domain name is not providing information related to any such generic meaning, but rather resolves to an inactive website (see paragraph 2.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
In the circumstances, the Panel concludes that the Complainant, having made out a prima facie case which remains unrebutted by the Respondent, has fulfilled the requirement of paragraph 4(a)(ii) of the Policy. (iii) Registered and Used in Bad Faith
As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s argument that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering the disputed domain name, which is identical or confusingly similar to the Mark.
Regarding the registration of the disputed domain name, while the Panel notes that the Complainant’s trademark CUIR PARIS was registered in January 2015, and that the disputed domain name was registered in December 2014, the Complainant has been doing business under the name “Société des Cuirs de Paris” since 2008. In addition, the Complainant is claiming that the Respondent is a competitor; therefore this Panel finds that the Respondent was aware of the Complainant and registered the disputed domain name in bad faith.
Regarding the use of the disputed domain name, the Panel notes that many UDRP panels have held that the passive holding of a domain name under the circumstances of this case does not prevent a finding of bad faith use.
In addition, the Complainant claims in its Complaint that the Respondent is a competitor, which was not rebutted by the Respondent, therefore the Panel finds that the Respondent is also disrupting the Complainant’s business.
The Panel concludes in these circumstances that the Respondent’s registration and use of the disputed domain name constitute bad faith, and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case. 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.
Louis-Bernard Buchman
Sole Panelist
Date: June 10, 2015
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