1.1 The Complainant is Micromania Group, France, represented by Cabinet Germain & Maureau, France.
1.2 The Respondent is Contact Privacy Inc. Customer 0153584320, Canada / Elodie Guet, Micromania Zing, Belgium. 2. The Domain Name and Registrar
2.1 The disputed domain name (the “Domain Name”) is registered with Tucows Inc. (the “Registrar”). 3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 12, 2019. At that time the publically available WhoIs details for the Domain Name identified what appears to be the “privacy service” of Registrar. On June 12, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 12, 2019, the Registrar transmitted by email to the Center its verification response disclosing the underlying registrant and contact information for the Domain Name. The Center sent an email communication to the Complainant on June 14, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on June 19, 2019.
3.2 The Center verified that the Complaint together with the amended 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”).
3.3 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on June 19, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 9, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 11, 2019.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on July 22, 2019. 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
4.1 The Complainant is a company located in, and organised under the laws of, France. Its business originated in 1983 and it has been well known, particularly in France, since the 2000’s for the sale of video games and gaming equipment. It has over 430 stores and 1,700 employees and since 2008 has generated turnover in excess of EUR 500 million per annum. The Complainant was acquired by the United States of America (“US”) company GameStop in 2008.
4.2 The Complainant is the registered owner of various registered trade marks that comprise or incorporate the term “Micromania”. They include International trade mark No. 933880 filed on March 3, 2007, for the standard character mark MICROMANIA in classes 9, 16, 25, 28, 35, 38, 41 and 42, which has proceeded to grant in a number of territories, including Benelux. This mark also relies upon two earlier and still extant French trade mark registrations filed in 2006.
4.3 The Complainant operates a website in respect of its business from the domain name . This website has approximately 20 million visitors per month. It has owned the domain name since December 1996, which also redirects Internet users to that website. It has also been the registrant of the domain names and since December 2016.
4.4 The Complainant also trades under the name “Micromania Zing”, which is, inter alia, a French registered trade mark in a number of classes, which was filed on October 23, 2017 and proceeded to registration on March 2, 2018.
4.5 The Domain Name was registered on January March 2019. The WhoIs details disclosed by the Registrar for the Domain Name in response to the Center’s verification request suggest that it has been registered by an individual at “Micromania Zing” in Belgium. However, no person with that name is employed by the Complainant’s organisation, the address given is not one used by the Complainant and the phone number disclosed is invalid.
4.6 The Domain Name was initially used following registration to redirect users to a website operating from the domain name , which offered for sale various video games. That website also displayed the copyright notice “© MICROMANIA ZING 2019”, invited visitors to subscribe to a newsletter and displayed a further invalid telephone number. It would appear that the website was then blocked by certain browsers as “unsafe” and/or taken down. 5. Parties’ Contentions A. Complainant
5.1 The Complainant claims that the Domain Name “is almost identical or at least confusingly similar to … [its trade marks]”. In this respect, it contends that the Domain Name reproduces the term “Micromania” (which it characterises as a “fancy name”) in its entirely and combines it with the ordinary work “shop”.
5.2 The Complainant denies that the Respondent has any right or legitimate interest in the Domain Name. In this respect, it relies upon the facts that the Respondent has not been authorised to use the Complainant’s trade marks and that the contact details for the Domain Name are false.
5.3 So far as bad faith is concerned, the Complainant contends that the Domain Name has been used “for phishing attacks or at least for the sale of counterfeiting goods”. In this respect the Complainant relies upon the facts that Internet users were initially redirected to a website operating from the domain name, the “© MICROMANIA ZING 2019” copyright notice, newsletter invitation and false telephone number appearing on that website, and the subsequent blocking of that website by at least one web browser. The Complainant also relies upon the provision of false registration details as evidencing bad faith. B. Respondent
5.4 The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.
6.2 Notwithstanding the default of the Respondent, it remains incumbent on the Complainant to make out its case in all respects under the Rules set out in paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii) the Respondent has no rights or legitimate interests in respect of the Domain Name (paragraph 4(a)(ii)); and
(iii) the Domain Name has been registered and is being used in bad faith (paragraph 4(a)(iii)).
6.3 However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate”. A. Identical or Confusingly Similar
6.4 The Complainant has demonstrated that it owns registered trade mark rights in the term “Micromania” and the Panel accepts that a sensible (and perhaps most sensible) reading of the Domain Name is as the term “Micromania” combined with the ordinary English word “shop” and the “.com” Top-Level Domain (“TLD”). As such, the Complainant’s trade mark is clearly recognisable in the Domain Name.
6.5 This is sufficient for a finding that the Domain Name and the Complainant’s trade mark are “confusingly similar” as that term is understood under the Policy; as to which see section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”). In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
6.6 No website appears currently to operate from the Domain Name and when used the Domain Name merely redirected Internet users to another website. For the reasons that are explained in greater detail in the context of the bad faith later in this decision, the Panel is persuaded that the Domain Name was registered, and at all relevant times has been held, with a view to taking unfair advantage of the Complainant’s trade mark rights in the term “Micromania”. There is no right or legitimate interest in a domain name held for such a purpose, and the fact that a domain name is being so held constitutes positive evidence that no such right or interest in that domain name exists.
6.7 In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
6.8 The Domain Name was clearly registered and then held with the Complainant’s business and mark in mind. The term “micro” is a common one used in connection with personal computers and gaming and both “mania” and “shop” are ordinary English words. Nevertheless, the Panel accepts that the mark “Micromania” is one that had gained a significant reputation at the time the Domain Name was registered. Further, any doubt in this respect is laid to rest by the use made of the Domain Name immediately after registration. Particularly compelling here is the appearance of the copyright notice referring to “Micromania Zing” at the bottom of the website to which the Domain Name redirects. This is truly a “fancy” combination of terms and can only be understood as a deliberate reference to the Complainant’s business. The same is true of the reference to “Micromedia Zing” in the underlying WhoIs details for the Domain Name.
6.9 The Complainant contends that the Domain Name has then been used for the sale of counterfeit goods and/or for phishing purposes. The Panel is not convinced that the Complainant has really made out its case so far as counterfeit goods are concerned. There is no real attempt by the Complainant to explain why the goods appearing on the website to which the Domain Name redirects are likely to be counterfeit and this seems to be little more than bare assertion. As to phishing, there is the Complainant’s evidence that at least one web browser has blocked to that website, and the text then displayed by the browser suggests that the website might “trick” the Internet user “into doing something dangerous online such as revealing their personal information…”. However, it would have helped had the Complainant provided further explanation as to how the blocking in question operates and came about.
6.10 Nevertheless, the Panel does not think that ultimately this matters. What is clear from the use of the term “Micromedia Zing” on the relevant website, is that the Domain Name has at the very least been registered and held to take unfair advantage of the association between the term “Micromania” and the Complainant’s business name and mark to promote the sale or attempted sale of video game products. Such activity falls within the scope of the example of circumstances indicating bad faith registration and use set out in paragraph 4(b)(iv) of the Policy.
6.11 Further, the Panel accepts that in using the term “Micromedia Zing” the Respondent has sought falsely to impersonate the Complainant, by suggesting that the Complainant owns the copyright in that website and is the registrant of the Domain Name. Registration and use of a domain name falsely to impersonate another person, is a clear example of registration and use in bad faith (see, for example, Weber-Stephen Products LLC v. WhoisGuard Protected, WhoisGuard, Inc. / Daniela Gebauer, Kitchenhelpers GmbH,WIPO Case No. D2017-0118).
6.12 The Panel also accepts that the Respondent has used false contact details and that this also supports a finding of bad faith.
6.13 In the circumstances, the Complainant has made out the requirements of paragraph 4(a)(iii) of the Policy. 7. Decision
7.1 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.
Matthew S. Harris
Sole Panelist
Date: July 24, 2017
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