The Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France.
The Respondent is Daijun Yang of Shijiazhuang, Hebei, China. 2. The Domain Name and Registrar
The disputed domain name (“Domain Name”) is registered with D 1052 LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 20, 2017. On November 20, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, 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 November 29, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 19, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 20, 2017.
The Center appointed Nicholas Smith as the sole panelist in this matter on January 8, 2018. 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 French tire company, headquartered in Clemont-Ferrand, France. It has a presence in in 170 countries, employs 111,700 people and operates 68 production facilities in 17 countries. The Complainant first set up its office in China, the location of the Respondent, in 1989 and presently has more than 5,000 employees in that country.
The Complainant is the owner of trade mark registrations in various jurisdictions, including China, for the word “Michelin” (the “MICHELIN Mark”). It has registered the MICHELIN Mark in China, for various goods in class 12, since April 1980.
The Domain Name was registered on July 6, 2017. Prior to the commencement of the proceeding, the Domain Name was inactive however at the date of this Decision the Domain Name resolved to a Chinese-language Internet site (“the Respondent’s Website”) which appears to offer news stories and links to various third party websites. 5. Parties’ Contentions A. Complainant
The Complainant makes the following contentions:
(i) that the Domain Name is identical or confusingly similar to the Complainant’s MICHELIN Mark;
(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant is the owner of the MICHELIN Mark, having registered the MICHELIN Mark internationally and in China. The Domain Name consists of the MICHELIN Mark and the letters “sy” which may refer to the country code Top-Level Domain for Syria, the Complainant being the owner of the domain name .
There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Respondent is not commonly known as the Domain Name, nor does the Respondent have any authorization from the Complainant to register the Domain Name. The Respondent is not using the Domain Name for any active website and hence has not made any demonstrable preparations to use the Domain Name for any legitimate purpose.
The Domain Name was registered and is being used in bad faith. Given the significant international reputation of the Complainant it is implausible that the Respondent was unaware of the Complainant when he registered the Domain Name. Furthermore the Respondent, by failing to use the Domain Name and not responding to the Complainant’s correspondence, is passively holding the Domain Name, which amounts to registration and use of the Domain Name in bad faith under the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
To prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark.
The Complainant is the owner of the MICHELIN Mark, having registrations for the MICHELIN Mark as a trade mark both internationally and in China, the location of the Respondent.
Discounting the generic Top-Level Domain “.com”, the Domain Name consists of the MICHELIN Mark and the letters “sy”. The addition of the letters “sy” does not prevent a finding of confusing similarity as the dominant element in the Domain Name is the Complainant’s MICHELIN Mark, which is reproduced in its entirety. The Panel finds that the Domain Name is confusingly similar to the Complainant’s MICHELIN Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
“Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the MICHELIN Mark or a mark similar to the MICHELIN Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a legitimate non-commercial use.
At the commencement of the proceeding the Respondent had not made any use of the Domain Name. In the absence of any response from the Respondent setting out its conduct before the commencement of the proceeding the Panel is unpersuaded that the Respondent’s present use of the Domain Name establishes that the Respondent made use of or demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods and services before any notice to it of the dispute (emphasis added).
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had the opportunity to put on evidence of its rights or legitimate interests, including submissions as to why its conduct amounts to a right or legitimate interest in the Domain Name under the Policy. In the absence of such a response the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
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 the Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name’s registration to the Complainant who is the owner of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) The Respondent has registered the Domain Name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.
The Panel finds that it is likely that the Respondent was aware of the Complainant at the time the Domain Name was registered. The Complainant is a well-known enterprise with its MICHELIN Mark having been registered for over 35 years in China. Furthermore the MICHELIN Mark is a coined mark with no descriptive meaning. The Respondent does not provide, nor is it apparent to the Panel, any reason why the Domain Name was registered other than by reference to the Complainant. The registration of the Domain Name in awareness of the Complainant and any rights it had at the time in the MICHELIN Mark and in the absence of rights or legitimate interests amounts to registration in bad faith.
The Respondent is using the Domain Name for a commercial website offering news and links to third party websites (for which it may receive revenue). In the absence of any explanation for the use of the Domain Name or any obvious connection between the Domain Name and the content of the Respondent’s Website (none having been provided by the Respondent) the Panel finds that the Respondent registered and has used the Domain Name to intentionally attempt to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website. The Respondent has used the Domain Name to operate an apparently commercial website. It therefore is also likely to receive revenue from Internet users who happen to come across the Respondent’s Website by means of confusion with the Complainant and its MICHELIN Mark.
For the reasons set out above, the Panel also finds that the Respondent has used the Domain Name in bad faith. Accordingly, the Panel finds that the Respondent has registered and used the Domain Name in bad faith under paragraph 4(a)(iii) 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 the Complainant.
Nicholas Smith
Sole Panelist
Date: January 10, 2018
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