Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France.
Respondent is Anshul Goyal, Guava Softs Pvt Ltd of Ludhiana, Punjab, India. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with InternetX GmbH (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 28, 2016. On November 28, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 30, 2016, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on December 7, 2016. In accordance with the Rules, paragraph 5, the due date for Response was December 27, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 29, 2016.
The Center appointed Martin Schwimmer as the sole panelist in this matter on January 11, 2017. 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
BIBENDUM (the “Trademark”) is the name of the Michelin Man, the logo of Complainant Michelin, the well−known tire company. Complainant has registered and used the BIBENDUM word mark in relation to its logo, all over the world, including India, the location of Respondent. For instance, Complainant is the owner of Indian Trademark Registration number 1331614 BIBENDUM (word mark), registered with filing date January 12, 2005. Respondent publicly offered the Domain Name for sale after receiving a demand letter from Complainant. 5. Parties’ Contentions A. Complainant
Complainant is Michelin, the well-known tire company. Its famous logo depicts a cartoon man made out of tires. Complainant asserts that it is one of the most well-known logos in the world. While the logo is primarily known as the Michelin Man, the character is also known as BIBENDUM, because an early advertisement portraying the Michelin Man bore the Latin words “Nunc est Bibendum” (“Now is the time for drinking”). Complainant owns registrations for BIBENDUM in many countries, including India, which registrations were obtained in India as early as 1999, many years prior to the registration date of the Domain Name.
Complainant utilizes BIBENDUM as a trademark for its primary tire products, as well as for ancillary services, such as restaurant and tourism services. The history of the Michelin Man is an integral part of Complainant’s branding efforts, and therefore the BIBENDUM name is widely promoted in the telling of that history.
Respondent has no relationship of any manner to Complainant.
When Complainant learned of the Domain Name, it did not resolve to an active webpage. After attempting to resolve the matter amicably, Complainant sent Respondent a demand letter asserting its rights in the BIBENDUM trademark. At that point, the Domain Name was listed for sale on a domain name sales website. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
Complainant has established ownership of the BIBENDUM trademark by providing registration of its India and International Registrations. Complainant has shown long time usage of the Trademark worldwide and in India.
Respondent’s Domain Name incorporates Complainant’s BIBENDUM trademark in its entirety, as well as the non-distinctive “.xyz” suffix. It is the consensus view of UDRP panels to usually disregard the generic Top−Level Domain (“gTLD”) suffix. The Panel holds that pursuant to paragraph 4(a)(i) of the Policy, the Domain Name is confusingly similar to Complainant’s BIBENDUM mark. B. Rights or Legitimate Interests
The second ground to be demonstrated by Complainant, according to the provisions of the Policy, is Respondent’s absence of any rights or legitimate interests in the Domain Name, per paragraph 4(c) of the Policy.
Previous UDRP panels have consistently held that it is sufficient for a complainant to prove a prima facie case that the respondent does not hold rights or legitimate interests in the domain name (see Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; and Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110). Once a prima facie case is shown, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating its rights or legitimate interests in the disputed domain name.
The Panel is satisfied that Respondent has no connection or affiliation with Complainant and has not received any license or consent to use the BIBENDUM trademark in a domain name or in any other manner. Complainant alleges that there is no such connection here. The Panel notes that Respondent’s name does not reflect the Domain Name. The Panel finds there is no evidence of legitimate noncommercial or fair use of the Domain Name.
In addition, Respondent has not submitted any reply to Complainant’s contentions.
Therefore, in light of Complainant’s prima facie case, unrebutted by Respondent, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the Domain Name in bad faith, namely:
(i) circumstances indicating that Respondent has registered or acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the Domain Name; or
(ii) Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product.
While Complainant’s logo is primarily referred to as the Michelin Man (which name itself has been the subject of previous UDRP proceedings), Complainant has submitted extensive evidence of promotion of its BIBENDUM mark such that its mark is sufficiently established such that, coupled with the absence of any other evidence in the record to the contrary, it is fair to presume that Respondent registered the Domain Name with prior knowledge of Complainant’s rights. Such evidence includes documentation of Complainant’s registration and use of the BIBENDUM mark, worldwide and in India, where Respondent is located.
The Panel notes that, subsequent to receipt of Complainant’s demand letter, Respondent offered the Domain Name for sale on a website that specializes in selling domain names.
It is well settled that the passive holding of a domain name reflecting a trademark, in combination with an offer of sale of that domain name, may satisfy the concept of bad faith registration and use.
For the reasons cited above, the Panel finds for Complainant on the third element 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 Domain Name, be transferred to Complainant.
Martin Schwimmer
Sole Panelist
Date: January 13, 2017
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