The Complainant is Société anonyme des eaux minérales d'Evian (SAEME) of Evian-Les-Bains, France, represented by Dreyfus & associés, France.
The Respondent is ALEX GLEDSON of Perth, Australia; Whoisguard, Inc. of Panama City, Panama. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 3, 2016. On March 4, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 7, 2016, 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 March 10, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 14, 2016.
The Center verified that the Complaint and 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceeding commenced on March 16, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 5, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 6, 2016.
The Center appointed Marilena Comanescu as the sole panelist in this matter on April 22, 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.
The language of the proceeding is English. 4. Factual Background
The Complainant is a subsidiary of the DANONE group, a leading company, inter alia, in the business of bottled water and baby food products. According to its assertions, in 2014, the Complainant produced 25 billion liters of water and counted more than 37,000 employees in its water production section, making up 18 percent of the world market in water products and being present in 143 countries.
The Complainant owns worldwide trademark registrations for EVIAN such as the International trademark No. 235956 of September 24, 1960 for EVIAN covering goods in classes 32 and 33.
Also, since 1905 the Complainant administers the five-star "Hotel Royal" located in Evian-les-Bains, France and owns word and figurative trademark French registrations for EVIAN ROYAL RESORT, such as the French registration no. 3379154 of September 9, 2005 covering services in classes 41, 43 and 44.
Previous UDRP panels have found that the Complainant's trademark EVIAN enjoys worldwide reputation. See for example Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Vivi Bui and Evian Dayspa, WIPO Case No. D2008-1869; Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Private Whois Escrow Domains Private Limited and Pluto Domain Services Private Limited, WIPO Case No. D2009-0080; Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Nadex Aktiebolag, WIPO Case No. D2010-0328; andSociété Anonyme des Eaux Minérales d'Evian (SAEME) v. Christopher Walters, WIPO Case No. D2015-0516.
The disputed domain name was registered on March 7, 2015. At the time of filing the Complaint, the disputed domain name resolved to a web page reproducing Complainant's figurative French mark EVIAN ROYAL RESORT without authorization, whereas the website corresponding to the disputed domain name provided information about pest inspection matters.
The Complainant tried to amicably solve the dispute before initiating the UDRP procedure but its Cease and Desist letter and subsequent reminders remained unanswered. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to its trademarks EVIAN and EVIAN ROYAL RESORT, the Respondent has no rights or legitimate interests in the disputed domain name and the Respondent registered and is using the disputed domain name in bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In view of the Respondent's default, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in 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 Complainant holds worldwide trademark registrations for EVIAN and French registration for the mark EVIAN ROYAL RESORT. The dominant part of the disputed domain name incorporates the Complainant's well-known trademark EVIAN in its entirety. Further, the word "royal" is part of Complainant's French trademark registration for EVIAN ROYAL RESORT.
Even without having a trademark registration to include it, the term "royal" is a generic word, depicting superior, noble qualities of products and goods associated with a certain trademark and numerous UDRP panels have considered that the addition of generic wording to trademarks in a domain name is not sufficient to escape a finding of confusing similarity and does not change the overall impression of the domain name as being connected to a complainant's trademark. See paragraph 1.9 of theWIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0").
Further, it is well established in decisions under the UDRP that the presence or absence of spaces, characters (e.g., hyphens, dots) in a domain name and indicators for generic Top-Level Domains (e.g., ".com", ".biz", ".net", ".org") are typically irrelevant to the consideration of confusing similarity between a trademark and a domain name.
Given the above, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark EVIAN, pursuant to the Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests
The Complainant asserts that it has given no license or other right to use or register its trademark to the Respondent, that the Respondent is not commonly known by the disputed domain name and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services. In line with previous UDRP decisions, the Panel accepts that the Complainant has provided a prima facie case of the Respondent's lack of rights or legitimate interests in relation to the disputed domain name, and the burden of production shifts to the Respondent.
The Respondent chose not to challenge the Complainant's allegations. There is no evidence before the Panel to support the contrary, and therefore the Panel accepts these arguments as facts.
Further, according to the evidence provided in the Complaint, the disputed domain name was used for providing pest infection information and depicted Complainant's figurative French trademark EVIAN ROYAL RESORT without Complainant's authorization. Under the circumstances, such use cannot give rise to any rights or legitimate interests in the disputed domain name.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith
The Complainant holds trademark registrations for EVIAN since 1960 in many countries worldwide.
The disputed domain name was registered in 2015 and incorporates the well known EVIAN trademark and the term "royal" which is part of Complainant's French registration for EVIAN ROYAL RESORT.
Further, previous UDRP panels have found that the Complainant's trademark EVIAN is internationally well known, as mentioned under Chapter 4 above.
At the time of filing the Complaint the disputed domain name resolved to a web page depicting Complainant's figurative French trademark EVIAN ROYAL RESORT without authorization. By incorporating Complainant's well known mark in the disputed domain name and by further inserting Complainant's figurative trademark EVIAN ROYAL RESORT in the content of the web page corresponding to the disputed domain name, the Respondent is diverting Internet users searching for the Complainant's goods and services to its website making them wrongfully believe that the website corresponding to the disputed domain name is owned, controlled or somehow associated with the Complainant. This fact supports the inference that the purpose of the Respondent's diversion of traffic from the Complainant to itself is for the Respondent's own commercial gain. Such facts constitute bad faith under paragraph 4(b)(iv) of the Policy.
Also, the Respondent did not respond to the Complaint nor to the Complainant's letters sent prior to commencing the present proceeding. Furthermore, it appears that the postal and facsimile contact details provided to the Registrar are false since the hard copy notification documents for this case were undeliverable to the Respondent due to an apparently fake address. At the same time, the disputed domain name was registered under a privacy shield. Given all the other circumstances of the case, such behavior may be considered as further evidence of bad faith.
For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith, pursuant to the Policy, paragraph 4(a)(iii). 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.
Marilena Comanescu
Sole Panelist
Date: May 6, 2016
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