The Complainant is Orange Brand Services Limited of London, United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), represented by Bilalian Avocats, France.
The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, Bahamas. 2. The Domain Name and Registrar
The disputed domain name is registered with Internet Domain Service BS Corp (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 24, 2017. On March 24, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 3, 2017, 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 10, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 30, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 1, 2017.
The Center appointed Nicolas Ulmer as the sole panelist in this matter on May 3, 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
The Complainant is a company incorporated and based in the United Kingdom and an affiliate of the "Orange Group", a large and well-known multinational telecommunications, Internet and mobile services provider.
The Complainant is the owner of a number of trademarks incorporating the term "Cineday". These include a French semi-figurative trademark ORANGE CINEDAY, Reg. No. 3887812, registered on January 10, 2012 and a Swiss trademark for CINEDAY, Reg. No. 612704, registered on March 7, 2011. The Complainant also exploits the domain name which was created on February 15, 2011.
According to the Complaint, CINEDAY is used for promotional offers whereby consumers may on Tuesdays buy two cinema tickets for the price of one; the offer is available online and through mobile apps in France, Switzerland, Poland and the United Kingdom.
Little or nothing is known of the Respondent, whose identity is hidden; the Respondent registered the disputed domain name on April 11, 2016. The disputed domain name resolves to a website purportedly offering cinema tickets at a discounted price. 5. Parties' Contentions A. Complainant
The Complainant submits that all three elements of paragraph 4(a) of the Policy are readily proven by the Respondent's acts and behaviour. Notably that: the disputed domain name is identical or confusingly similar to its French and Swiss trademarks; that it never authorized the Respondent to use its trademarks; and that the disputed domain name has been registered and used in bad faith in order improperly to benefit from the notoriety of the Complainant's trademarks.
The Complainant thereupon requests that the disputed domain name be transferred to it.
The facts underlying these assertions are further described, as necessary, in Section 6 below. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name contains the entirety of the Complainant's Swiss trademark and the operative part of the Complainant's French Trademark. This is sufficient to establish identity or confusing similarity within the meaning of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
UDRP decisions establish that a complainant is required to demonstrate at least a prima facie case showing that the respondent has no rights or legitimate interests in respect of the disputed domain name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455. Once such a prima facie case is made, the burden shifts to the respondent to demonstrate that it has rights or legitimate interests in the disputed domain name. See also, Meizu Technology Co., Ltd. v. "osama bin laden",WIPO Case No. DCO2014-0002; H & M Hennes & Mauritz AB v. Simon Maufe, Akinsaya Odunayo Emmanuel and Nelson Rivaldo,WIPO Case No. D2014-0225.
In the instant case, the Complainant asserts that it has never authorized to the Respondent to use its trademarks in the disputed domain name, and that it has no knowledge or belief of any rights or legitimate interests of the Respondent in the disputed domain name. Furthermore, there is no evidence or indicia in the file of this case that would suggest that the Respondent is commonly known by the disputed domain name or has rights or legitimate interests in it.
The Respondent has failed to answer the Complaint; the Complainant has therefore met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The confusingly similar, if not identical, disputed domain name was registered some five to six years after the registration of the Complainant's trademarks and its domain name, and when the Complainant was running a considerable consumer-driven operation using the CINEDAY trademark. Furthermore, the term "Cineday" (which seems to be a combination of the French slang "cine", for "cinema", and the English word "day") does not appear to have a particular meaning outside of the Complainant's business. The disputed domain name cannot have been chosen serendipitously; it was registered in bad faith.
As to bad faith use, the Complainant submits screenshots, certified by a French huissier (bailiff), of the site to which the disputed domain name resolved showing that it was offering discounted cinema tickets, i.e., engaging in the same business as the Complainant. This demonstrates that the Respondent was making use of the Complainant's trademark and market notoriety in order to attract customers, and constitutes bad faith use. The Complaint furthermore alleges that the cinema tickets sold through the Respondent's site are invalid tickets. The fact that the Respondent is hiding and anonymising its identity is further indicia of bad faith use.
The Complainant has, accordingly, proven the third element of paragraph 4(a) 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 disputed domain name be transferred to the Complainant.
Nicolas Ulmer
Sole Panelist
Date: May 22, 2017
Full & Egal Universal Law Academy