The Complainant is ENEDIS of Paris La Défense, France, represented by Cabinet Alain Bensoussan Selas, France.
The Respondent is Jason Watson of Greenwood, Indiana, United States of America (“United States”). 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 2, 2018. On February 5, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On February 6, 2018, 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 February 7, 2018. In accordance with the Rules, paragraph 5, the due date for Response was February 27, 2018. An email was received from the Respondent on February 15, 2018.
In order to explore a possible settlement, the Complainant requested a 30 day suspension of the proceedings on February 21, 2018. The Center suspended the proceedings on February 22, 2018. The Complainant notified the Center on March 22, 2018 that attempts to reach the Respondent to discuss settlement negotiations had been unsuccessful. The Center notified the reinstitution of the proceedings on March 22, 2018 and that the due date for Response was March 27, 2018. No formal Response was filed with the Center.
The Center appointed John Swinson as the sole panelist in this matter on April 9, 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 ENEDIS, a French company which manages the public electricity distribution network for 95% of continental France. The Complainant was formerly known as Electricité Réseau Distribution France or ERDF. According to the Complaint, the Complainant has been entrusted by the French Regulatory Commission of Energy to implement a large-scale smart energy metering system named “linky”.
According to the Complaint, the Complainant owns a number of registered trade marks incorporating the term “linky”, including French Registered Trade Mark Number 3582682 for LINKY (stylised) (the “Trade Mark”) which was registered on June 17, 2008. The Complainant also owns International Trade Mark Registration Number 1101428 for LINKY which was registered on October 7, 2011 and designates numerous countries including the United States.
The Respondent is Jason Watson, an individual of the United States and registered owner of the Disputed Domain Name. The Respondent did not file a formal Response, and consequently little information is known about the Respondent.
The Disputed Domain Name was registered on December 1, 2016.
According to the Complaint, the WhoIs record for the Disputed Domain Name on August 27, 2017 showed that the Disputed Domain Name was previously owned by Kabir S Rawat, an individual of India. On October 20, 2017, the Complainant sent a formal notice to Kabir S Rawat concerning the Disputed Domain Name. Kabir S Rawat did not respond to the formal notice. The Disputed Domain Name was transferred to the Respondent on January 20, 2018.
The Disputed Domain Name resolves to a parking page with pay-per-click links and which offers the Disputed Domain Name for sale. 5. Parties’ Contentions A. Complainant
The Complainant makes the following submissions. Identical or Confusingly Similar
The Trade Mark has been incorporated into the Disputed Domain Name in its entirety. The generic Top-Level Domain (“gTLD”) “.org” is irrelevant in assessing confusing similarity.
The Disputed Domain Name is identical to the Trade Mark. Rights or Legitimate Interests
There is no evidence that the Respondent enjoys rights or legitimate interests in the Disputed Domain Name.
The registration and use of the Trade Mark by the Complainant around the world precedes the registration of the Disputed Domain Name.
The Respondent does not own any trade marks composed of the term “linky” and cannot demonstrate having any interest in that respect.
Based on Google search results using the search terms “Jason Watson” and “linky”, the Complainant considers that the Respondent is not commonly known by the Disputed Domain Name.
Finally, the Respondent is not related to the Complainant and the Complainant has not licensed or otherwise permitted the Respondent to use the Trade Mark or to apply for any domain name incorporating the Trade Mark. Registered and Used in Bad Faith
The Disputed Domain Name was registered and is being used in bad faith.
The Complainant has been using the Trade Mark in relation to its communicating energy meters for a year prior to the original registration date of the Disputed Domain Name and had built up a reputation in the Trade mark due to being widely deployed in France and the only electricity meter on the French market.
It is clear that the previous owner of the Disputed Domain Name, Kabir S Rawkat, and the Respondent, successively registered the Disputed Domain Name for the primary purpose of reselling it. This constitutes sufficient use to demonstrate bad faith.
The Respondent registered the Disputed Domain Name without the intention of really using it but to redirect it to a parking page.
Given the reputation of the Trade Mark, it is highly probable that the Respondent’s aim is to sell the Disputed Domain Name to the Complainant at the highest possible price. In these circumstances, the Respondent has no intention to use the Disputed Domain Name to promote a commercial or noncommercial activity in good faith. B. Respondent
The Respondent did not formally reply to the Complainant’s contentions. However, on February 15, 2018, the Center received an informal email communication from the Respondent in which the Respondent indicated that he would transfer the Disputed Domain Name and that he has not used it since purchasing it on January 20, 2018. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely:
(i) the Disputed Domain Name is identical or confusingly similar to a trade mark 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.
The onus of proving these elements remains on the Complainant even though the Respondent has not filed a formal Response.
The Respondent’s failure to file a formal Response does not automatically result in a decision in favour of the Complainant (see, e.g., Airbus SAS, Airbus Operations GmbH v. Alesini Pablo Hernan / PrivacyP,WIPO Case No. D2013-2059). However, the Panel may draw appropriate inferences from the Respondent’s default. A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to the Trade Mark.
The Disputed Domain Name is identical to the Trade Mark. The gTLD “.org” may be disregarded for the purposes of determining identity (see section 1.11 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
The Complainant is successful on the first element of the Policy. B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant is required to make out a prima facie case showing that the Respondent lacks rights or legitimate interests.
The Panel finds that the Complainant has made out a prima facie case. This finding is based on the following:
- The Panel accepts the Complainant’s submission that the Respondent is not a licensee or otherwise authorised by the Complainant to use the Disputed Domain Name.
- There is no evidence that the Respondent has been commonly known by the Disputed Domain Name or the Trade Mark, or has registered or common law trade mark rights in relation to the Trade Mark.
- The Respondent has not used, or made demonstrable preparations to use, the Disputed Domain Name in connection with a bona fide offering of goods or services. At the time of this decision, the Disputed Domain Name points to a parking page which offers the Disputed Domain Name for sale.
- The Respondent has not been making a legitimate noncommercial or fair use of the Disputed Domain Names without intent for commercial gain. This is further demonstrated by the fact that the Respondent offered to transfer the Disputed Domain Name and then ceased all correspondence with the Complainant.
The Respondent had the opportunity to demonstrate his rights or legitimate interests, but did not do so. In the absence of a Response from the Respondent, the prima facie case established by the Complainant has not been rebutted.
In light of the above, the Complainant succeeds on the second element of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent has registered and is using the Disputed Domain Name in bad faith.
The Complainant has registered rights in the Trade Mark since 2008 and according to the Complaint has been using the Trade Mark in respect of its goods since December 1, 2015.
The Disputed Domain Name was registered on December 1, 2016 and was subsequently transferred to the Respondent on January 20, 2018. This later date, being the date on which the current registrant acquired the Disputed Domain Name, is the date the Panel considers in assessing bad faith (see section 3.9 of the WIPO Overview 3.0). Therefore, the Panel disregards the Complainant’s submissions in respect of the previous owner of the Disputed Domain Name.
The Panel accepts the Complainant’s submission that the Respondent’s registration and use of the Disputed Domain Name is solely for the purpose of selling it for a financial profit. The Respondent’s informal email communication also confirms that the Respondent has not used the Disputed Domain Name since he acquired it approximately 3 months ago. The Respondent was willing to transfer the Disputed Domain Name to the Complainant, so he presumably has no intention of using the Disputed Domain Name for any particular purpose.
Given the Complainant’s relatively long-standing rights in the Trade Mark, and the Respondent’s willingness to transfer the Disputed Domain Name, and in the absence of any clear evidence of good faith registration or use of the Disputed Domain Name, the Panel considers it likely that the Respondent registered and is using the Disputed Domain Name in bad faith.
The Complainant has succeeded 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 Disputed Domain Name be transferred to the Complainant.
John Swinson
Sole Panelist
Date: April 20, 2018
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