The Complainant is Arkema France of Colombes, France, represented by In Concreto, France.
The Respondent is Armand Riquier of Reims, 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 with the WIPO Arbitration and Mediation Center (the “Center”) on April 12, 2016. On April 12, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 12, 2016, 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.
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, and the proceedings commenced on April 22, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 12, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 13, 2016.
The Center appointed Alexandre Nappey as the sole panelist in this matter on May 20, 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.
On May 25, 2016, the Complainant filed a Supplemental Filing with the Center. 4. Factual Background
The Complainant is the French company Arkema France, which is registered under this name in France since 1981.
The Complainant is present in 50 countries around the world with 137 production sites.
In France its head office is located in Colombes.
The Complainant is composed of three business hubs: high performance materials, industrial specialties and coating solutions.
ARKEMA FRANCE is a French leader in the chemistry industry.
The Complainant is the owner of several trademarks and domain names in connection with its business, and notably:
- International trademark n° 847.865 ARKEMA, registered on November 30, 2004 in classes 1, 2, 3, 4, 5, 16, 17, 37, 38, 39, 40, 41, 42 and 45 to cover, inter alia, Armenia, Austria, Australia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Belgium, the Netherlands, Luxembourg, Belarus, Switzerland, China, Cuba, Cyprus, Czech Republic, Germany, Denmark, Algeria, Estonia, Egypt, Spain, Finland, United Kingdom of Great Britain and Northern Ireland, Georgia, Greece, Croatia, Hungary, Ireland, the Islamic Republic of Iran, Italy and Japan;
- Community trademark n° 4.181.731 ARKEMA filed on December 8, 2004 and registered on February 9, 2006 in classes 1, 2, 3, 4, 5, 7, 9, 11, 12, 16, 17, 19, 20, 22, 25, 27, 35, 36, 37, 38, 40, 41 and 42.
This trademark has been filed under seniority of the French trademark n° 3.048.573 ARKEMA filed on August 28, 2000.
- Domain name , registered on on May 21, 2001;
- Domain name , registered on May 22, 2006;
The disputed domain name is .
It was registered on April 6, 2016 in the name of Mr. Armand Riquier, located in France, and it redirects visitors to an error page. 5. Parties’ Contentions A. Complainant
The Complainant first alleges that the disputed domain name is very similar to its earlier marks, to the point of creating confusion.
Indeed, the disputed domain name reproduces the Complainant’s earlier marks ARKEMA in their entirety, and the addition of the term “groupe” increases the risk of confusion since the disputed domain name will appear as a variation of its earlier trademarks.
The hyphen is irrelevant and cannot eliminate the risk of confusion and the generic Top-Level Domain (“gTLD”) “.com” has not to be taken into consideration.
Secondly, the Complainant alleges that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Respondent has acquired no European, International or French trademark rights on the denomination ARKEMA that would justify the registration of the disputed domain name.
The Complainant has not authorized, licensed, or otherwise permitted the Respondent to use any of its trademarks or to apply for or use any domain name incorporating its trademarks.
As the disputed domain name redirects visitors to an error page, the Respondent is not offering goods or services or has not made serious preparation for that purpose.
Finally, the Complainant alleges that the disputed domain name was registered and used in bad faith.
Registered in bad faith:
The registration of the disputed domain name, which is confusingly similar to the Complainant’s earlier trademarks without legitimate interests in this respect and without authorization, demonstrates in itself that the Respondent is in bad faith.
Moreover, as the Complainant acquired a certain reputation and fame in the field of industry in which it is specialized, the bad faith of the Respondent may be presumed.
Furthermore, as “arkema” is not a descriptive term, a commonly used expression, or a word that would be instantly understood in the field of industry, this denomination has therefore a highly distinctive character.
It is thus very unlikely the Respondent chose the domain name without any knowledge of the Complainant’s earlier name, domain names or trademarks: the Respondent was necessarily aware of the existence of the company Arkema France and of its ARKEMA trademark rights.
Used in bad faith:
The Complainant tried to contact the Respondent by mail at the address indicated on the WhoIs, but the letter was returned by the Post Office as “the addressee is unknown at marked address”.
The Complainant also tried to contact the Respondent by email but it did not receive any response.
It shows that the Respondent supplied incorrect contact details or has not kept them up to date in conflict with the obligations to provide accurate information required under article 4 a. i. of the Registration Agreement between the Respondent and the Registrar.
Then the Complainant alleges that the Respondent has engaged in a “passive holding” of the disputed domain name.
Moreover, in its additional arguments, the Complainant submitted new facts and evidence to show the Respondent bad faith.
The Complainant explains that it received at its head office, a package from a company to the attention of the Respondent.
The Complainant provides copy of an order placed by the Respondent and some email correspondence between the Respondent and the above mentioned company, in which it appears that the Respondent has indicated the following addresses:
- Delivery address: ARKEMA GROUPE, M. RIQUIER ARMAND […] BAGNOLET, Telephone number: […] / telefax;
- Invoicing address: ARKEMA, M. RIQUIER ARMAND, […] COLOMBES CEDEX, Telephone number: […].
Moreover, the mail correspondence shows that the Respondent used the email address “[…]@”
As the Complainant does not employ the Respondent and does not hold the domain name , the Complainant alleges that the Respondent has falsely purported to be an employee of the Complainant and tried to usurp the quality of company ARKEMA FRANCE in order to obtain undue goods without paying the price.
The Complainant concludes that the Respondent was necessarily aware of the existence of the Complainant and that it is highly likely that the disputed domain name has been registered and used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Notwithstanding the default of the Respondent, it remains up to the Complainant to make out its case in accordance with paragraph 4(a) of the Policy, and to demonstrate that:
(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 respect of the Disputed Domain Name; and
(iii) The Disputed Domain Name has been registered and is being used in bad faith.
However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel “shall draw such inferences therefrom as it considers appropriate”.
Having consideration to the parties’ contentions, the Policy, Rules, Supplemental Rules and applicable substantive law, the Panel’s findings on each of the above mentioned elements are the following. 6.1 Procedural issue: unsolicited supplemental filing
Paragraph 12 of the Rules allows a panel in its discretion to request supplemental filings from either party, and although the Rules do not provide expressly for unsolicited submissions, under paragraph 10(a) the Panel enjoys a broad power to conduct the administrative proceeding in the manner it considers appropriate under the Policy and Rules, provided the parties are treated fairly and the proceeding is conducted expeditiously.
Other panelists have accepted unsolicited supplemental submissions under this rule (see, inter alia, AutoNation Holding Corp. v. Rabea Alawneh,WIPO Case No. D2002-0058).
However a supplemental filing may delay and complicate proceedings. Consequently, whether it is appropriate to admit an unsolicited supplemental filing will depend on its relevance to the issues in the case, whether the Panel considers the content of the submission essential to reaching a fair decision on the facts.
In this case, the Complainant’s Supplemental Filing reveals facts that were unknown to the Complainant at the time of initial filing. It is relevant to the issue of bad faith and assists the Panel in reaching a fair decision. The Panel therefore admits the Complainant’s submission of May 25, 2016 into the proceeding. 6.2 Substantive Issues A. Identical or Confusingly Similar
The Panel is satisfied that the Complainant owns exclusive trademark rights on ARKEMA, which predate the registration of the disputed domain name, especially in France where the parties are established.
The Panel finds that the disputed domain name is confusingly similar to the registered ARKEMA trademarks owned by the Complainant.
Indeed, the disputed domain name incorporates the entirety of the Complainant’s ARKEMA trademarks.
The additions of the dictionary term “groupe”, the gTLD “.com.” and a hyphen do not change this conclusion.
Therefore, the Panel also finds that confusing similarity exists under paragraph 4(a)(i) of the Policy for the disputed domain name. B. Rights or Legitimate Interests
The Panel accepts the contention of the Complainant that the Respondent has no rights or legitimate interests in the disputed domain name.
The Complainant stated that it has no relationship with the Respondent, and that it did not grant any licence or authorization to use the ARKEMA trademarks to the Respondent.
There is no evidence of use of the disputed domain name in connection with a bona fide offering of goods or services.
There is no evidence that the Respondent has been commonly known by the disputed domain name.
There is no evidence that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
See Halliburton Energy Services, Inc. v. Solounge Woodson,WIPO Case No. D2016-0542:
“ (…) Respondent is attempting to masquerade as a person who works at Complainant’s company in order to fraudulently obtain equipment, that Respondent acquired the Disputed Domain Name for the sole purpose of exploiting and profiting from Complainant’s rights, title, interest and goodwill in the HALLIBURTON mark through the perpetration of an identity theft scheme involving a fraudulent email address..”
Conversely, evidence produced by the Complainant suggests fraudulent use of the disputed domain name, which has not been rebutted by the Respondent who was found in default.
The Panel finds that the second element of the Policy has been established. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out examples of circumstances that will be considered by a panel to be evidence of bad faith registration and use of a domain name. It provides that:
“For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
UDRP panels may draw inferences about bad faith registration or use in light of the circumstances, such as whether the trademarks in question are well-known, whether there is no response to the complaint, and other circumstances. See, e.g., Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
Given the widespread use and fame of the Complainant’s ARKEMA trademark and the fact that Arkema France is leader in its field in France, where the Respondent is also established, the Panel infers that the Respondent had actual knowledge of the Complainant’s mark at the time he registered the disputed domain name.
In any way, the order placed by the Respondent and the emails sent by him show that the Respondent has indicated, as billing address, the Complainant’s head office location and even the Complainant’s registration number at the Companies Registry (SIRET number).
Moreover, these emails show that the Respondent registered at least another domain name including the trademark ARKEMA () that he has been using in an email address: “[…]@”.
This demonstrates without any doubt that the Respondent was necessarily aware of the existence of the company Arkema France and that he tried to impersonate the Complainant to disrupt its business, and defraud third parties to obtain products without paying the related invoice.
Finally, the Panel notes that the disputed domain name does not resolve to an active website. It is common understanding among UDRP panels that passive holding does not as such prevent a finding of bad faith. As indicated in Telstra Corporation Limited v. Nuclear Marshmallows, supra, the Panel must examine all the circumstances of the case to determine whether the Respondent is acting in bad faith.
Under all the above listed circumstances, combined with the adverse inferences drawn by the Respondent’s failure to reply to the cease and desist letter sent by the Complainant, and to the Complaint and supplemental filing, the Panel finds that the Complainant has established that Respondent has registered and is using 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.
Alexandre Nappey
Sole Panelist
Date: June 6, 2016
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