The Complainant is Institut de Recherche Biologique- IRB of Montaigu, France, represented by Cabinet Vidon Marques & Juridique PI, France.
The Respondent is Fred Morrill of Tequesta, Florida, United States of America (“United States”). 2. The Domain Name and Registrar
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 September 17, 2018. On September 17, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 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 September 24, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 14, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 15, 2018.
The Center appointed Alistair Payne as the sole panelist in this matter on October 25, 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, based in France, manufactures and sells food supplement products and since 1996 has developed a range of energy products under the FORCE G mark. The Complainant owns various registrations for this mark including a French trade mark registration under number 96613649 registered on February 29, 1996.
The disputed domain name was registered on July 12, 2002 and resolves to a pay-per-click parking site. 5. Parties’ Contentions A. Complainant
The Complainant submits that it owns registered trade mark rights for its FORCE G mark as set out above and that the disputed domain name wholly incorporates this mark and is in fact identical to it.
The Complainant submits that it has not permitted or authorised the Respondent to use its FORCE G mark and that the Respondent is not making any legitimate use of the disputed domain name. The Complainant notes that the disputed domain name does not lead to a webpage for an active business, but to a pay‑per‑click parking page that includes three links containing references to “Gas” (“Gas treatments” and “CEG Gas” for example). The Complainant asserts that it has been unable to find any evidence of the Respondent having previously run a bona fide business under the disputed domain name or FORCE G mark, even though the disputed domain name was registered in 2002. Therefore, says the Complainant, the Respondent has not been commonly known by the disputed domain name and neither has it made a legitimate noncommercial or fair use of the disputed domain name.
As far as bad faith is concerned the Complainant submits that the Respondent should have been aware of its FORCE G mark which is registered in many countries. The Complainant says that this and the fact that the Respondent has not made a bona fide use of the disputed domain name points to the conclusion that the Respondent merely registered the disputed domain name to prevent the Complainant from obtaining a “.com” domain name identical to its FORCE G mark.
The Complainant notes that on July 20, 2017 it sent a cease-and-desist letter to the Respondent advising it of its rights in the FORCE G mark and requesting it to stop infringing the Complainant’s trade mark rights. The Complainant received no response from the Respondent and the status of the disputed domain name and the website to which it resolves remains unchanged. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has demonstrated that it owns French trade mark registration number 96613649 registered on February 29, 1996. The disputed domain name wholly incorporates the Complainant’s mark and other than the generic Top-Level Domain (“gTLD”) “.com”, is identical to this mark. Accordingly, the Panel finds that the disputed domain name is identical to the Complainant’s registered trade mark and the Complaint succeeds under this element of the Policy. B. Rights or Legitimate Interests
The Complainant has submitted that it has not permitted or authorised the Respondent to use its FORCE G mark and has asserted that the Respondent is not making any legitimate use of the disputed domain name.
The Complainant notes that the disputed domain name does not lead to a webpage for an active business, but rather resolves to a pay-per-click parking page. The Complainant says that it has been unable to find any evidence of the Respondent having previously run a bona fide business under the disputed domain name or FORCE G mark, even though the disputed domain name was registered in 2002 and as a consequence has submitted that the Respondent has not been commonly known by the disputed domain name and has neither made a legitimate nor a noncommercial or fair use of the disputed domain name
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has failed to rebut this case and the Panel finds as a result and also for the reasons noted under section C, below, that the Complaint also succeeds under this element of the Policy. C. Registered and Used in Bad Faith
The Complainant’s FORCE G mark was registered in France in 1996 and was subsequently registered in various other countries through an international registration.
The Panel notes that while the disputed domain name does not lead to a webpage for an active business, it does lead to a pay-per-click parking page that includes three links in relation to “gas”. Under paragraph 4(b)(iv) of the Policy there is deemed evidence of registration and use of a domain name in bad faith where it is found that the Respondent has intentionally attempted to attract Internet users for commercial gain to its website by creating a likelihood of confusion as to source, sponsorship, affiliation or endorsement. The Respondent’s use in this case of the disputed domain name to resolve to a pay-per-click parking page is sufficient to fulfill the requirements of this section of the Policy. The Panel’s finding of bad faith is reinforced by the Respondent’s failure to respond to the Complaint, or to reply to the Complainant’s cease-and-desist letter.
Accordingly, the Panel finds that the Complainant has made out its case under this 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.
Alistair Payne
Sole Panelist
Date: November 5, 2018
Full & Egal Universal Law Academy