The Complainant is Mars Belgium SA of St. Stevens, Woluwe, Belgium, represented by Altius, Belgium.
The Respondent is Manka Camara of Paris, France. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with Register.IT SPA (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 18, 2016. On February 18, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On February 19, 2016, the Registrar transmitted by email to the Center its verification response. On February 24, 2016, the Center informed the Parties that the Complaint had been submitted in English and that according to the concerned Registrar, the language of the Registration Agreement for the Disputed Domain Name is French. The Center requested the Complainant to provide: (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 French; or (3) submit a request for English to be the language of the administrative proceeding. On February 25, 2016, the Complainant submitted a request for English. 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 and 4, the Center formally notified the Respondent of the Complaint in both English and French and the proceeding commenced on March 3, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 23, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 24, 2016.
The Center appointed Michael D. Cover as the sole panelist in this matter on April 5, 2016. 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 corporation in the form of a Belgian “société anonyme”, registered in accordance with the laws of Belgium. The Complainant is the Belgian subsidiary of the Mars group. The Mars group is an international group of companies manufacturing and distributing products in the areas of petcare, chocolate, food, drinks, health/life sciences and gum/candy.
The Complainant is the proprietor of the trademark EFFEM, which is registered in the Benelux since 1976 in Classes 5 for dietary foodstuffs, 29 for foodstuffs, 30 for tea and coffee and 31 for seeds, fruit and vegetables and certain animal feed.
The Respondent is Manka Camara, with residence or offices in Paris, France. It is unclear whether the Respondent is an individual or a legal entity.
The Disputed Domain Name was registered on November 3, 2015. 5. Parties’ Contentions A. Complainant Identical or Confusingly Similar
The Complainant submits that the Disputed Domain Name is confusingly similar to its trademark, EFFEM, in which it has rights. The Complainant submits that the Disputed Domain Name wholly incorporates its trademark EFFEM, preceded by the prefix “BE”, the two letter code that is commonly and internationally used for Belgium and the Complainant is the Belgian subsidiary of the Mars group. The Complainant submits that, except in circumstances where the trademark is not the dominant component of a domain name, the addition of merely generic, descriptive or geographical wording would normally be insufficient to avoid a finding of confusing similarity under the first element of the Policy and cites various previous decisions of UDRP panels in support.
The Complainant concludes that “effem” is the dominant component of the Disputed Domain Name and that Internet users, particularly in Belgium, would have assumed and will assume that the Disputed Domain Name is linked to the Complainant as the Belgian branch of the Mars group. Rights or Legitimate Interests
The Complainant submits that the Respondent has no rights or legitimate interests in the Disputed Domain Name. The Complainant states that the Disputed Domain Name was used by the Respondent to deceive email recipients to make payments to an account which the Complainant presumes was linked to the Respondent.
The Complainant also submits that the Respondent has not used the Disputed Domain Name in connection with a bona fide offering of goods or services, that the Respondent is not and has never been commonly known by the Disputed Domain Name nor has the Respondent ever made a legitimate noncommercial or fair use of the Disputed Domain Name, which circumstances would demonstrate the Respondent’s rights and legitimate interests in the Disputed Domain Name in accordance with paragraph 4(c) of the Policy. The Complainant then refers the Panel to evidence that it has submitted under the heading of “Registered and Used in Bad Faith”. Registered and Used in Bad Faith
The Complainant submits that the Disputed Domain Name has been registered and is being used in bad faith. It states that the purpose of the registration of the Disputed Domain Name was to impersonate the Complainant’s employees and to deceive customers of the Complainant into making payments to accounts other than those of the Complainant.
The Complainant describes how, on November 4, 2015, the day after the date of the registration of the Disputed Domain Name, a process was started involving a fake email account, “[…]@”, to one of the Complainant’s customers in Belgium, with a letter attached with a fake Mars letterhead. This led to a Belgian supermarket chain that sells the Complainant’s products, transferring money for the Complainant’s products to the wrong account.
The Complainant submits that the sole purpose of the registration of the Disputed Domain Name was to perpetrate what it describes as this scam. The Complainant submits that this constitutes registration and use of the Disputed Domain Name in bad faith, even though this activity is not specifically listed in paragraph 4(b) of the Policy.
For the reasons the Complainant has submitted, it requests that the Panel order that the Disputed Domain Name be transferred to the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Complainant must demonstrate on the balance of probabilities that the Disputed Domain Name is identical or confusingly similar to its trademark, in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name and that the Disputed Domain Name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel accepts that the Complainant has established that it has rights in its trademark EFFEM. The Complainant has registered rights in its trademark.
The Panel also accepts the Complainant’s submission that the Disputed Domain Name is confusingly similar to its trademark EFFEM. “Effem” is the dominant part of the Disputed Domain Name and the Panel finds that the prefix “be-” is of geographical significance. As noted in the UDRP decisions cited by the Complainant, it is well established that the addition of geographical, non-distinctive material is not sufficient to avoid confusing similarity. B. Rights or Legitimate Interests
The Panel accepts that the Respondent has no rights or legitimate interests in the Disputed Domain Name. It is a reasonable inference that the Respondent was aware of the Complainant’s trade mark EFFEM when it registered the Disputed Domain Name in November 2015 and the Respondent would not be able to go through any of the gateways in paragraph 4(c) of the Policy with regard to demonstrating that it does have rights to and legitimate interests in the Disputed Domain Name. In fact, the use of the Disputed Domain Name as set out by the Complainant demonstrates that such use as has taken place has been of a fraudulent nature. C. Registered and Used in Bad Faith
The Panel accepts the submissions of the Complainant in this regard and finds that the Disputed Domain Name has been registered and is being used in bad faith. Whilst the conduct that of the Respondent does not fall exactly within one of the subheadings of paragraph 4(b) of the Policy, which are the gateways to demonstrate that a domain name has been registered and used in bad faith, the subheadings are a non-exhaustive list. The Panel finds on a balance of probabilities that the conduct of the Respondent set out by the Complainant does constitute registration and use of the Disputed Domain Name 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.
Michael D. Cover
Sole Panelist
Date: April 29, 2016
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