The Complainant is Groupe Canal +, France, represented by Nameshield, France.
The Respondent is Paweł Zawiszewski, Antena, Poland. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 29, 2019. On November 29, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 2, 2019, 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 and contact information for the disputed domain name. The Registrar having indicated that the language of the Registration Agreement was Polish, the Center invited the Complainant to provide sufficient evidence of an agreement between the Parties for English to be the language of proceeding, a Complaint translated into Polish, or a request for English to be the language of proceeding. The Complainant filed a request for English to be the language of proceeding on December 5, 2019. 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 December 17, 2019. In accordance with the Rules, paragraph 5, the due date for Response was January 6, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 8, 2020. The Center appointed Piotr Nowaczyk as the sole panelist in this matter on January 17, 2020. 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 leading French audiovisual media group which produces pay-TV and theme channels. It also offers pay-TV services. The Complainant holds several trade mark registrations including: - the international trade mark registration for CANAL PLUS (No. 509729) registered on March 16, 1987, in classes 9,16, 35, 38 and 41; - the international trade mark registration for CANAL PLUS (No. 619540) registered on May 5, 1994, in classes 9, 16, 25, 28, 35, 38 and 41. Furthermore, the Complainant owns multiple domain names consisting in the CANAL PLUS mark, such as Firstly, the Complainant asserts that the disputed domain name is identical to the CANAL PLUS mark as it includes the mark in its entirety without any addition or deletion. Secondly, the Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant claims that it has not agreed to the Respondent’s registration of the disputed domain name. The Complainant also emphasizes that the Respondent is not commonly known. Thirdly, the Complainant states that the disputed domain name was registered and is being used in bad faith. The Complainant contends that the Respondent was or should have been aware of the reputation of the CANAL PLUS mark as its registration predate the registration of the disputed domain name. According to the Complainant, the Respondent has not demonstrated any activity in respect of the disputed domain name, and it is not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy places a burden on the Complainant to prove the presence of three separate elements. The three elements can be summarized as follows: (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 the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith. The requested remedy may only be granted if the above criteria are met. A. Preliminary Issue: Language of the Proceeding The language of the Registration Agreement for the disputed domain name is Polish. Paragraph 11(a) of the Rules provides that “[u]nless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” The Complaint was filed in English. The Complainant requested English to be the language of the administrative proceeding. The Complainant asserted i.a. that it would be burdensome for it to translate the Complaint along with the annexes into English. The Respondent was properly notified about the language of the proceeding in English and Polish, and the Respondent has not objected to the Complainant’s language request. Notification of the Complaint was also sent to the Respondent in English and in Polish, however, the Respondent has not participated in these proceedings in any way. Taking into account that the cost of translation of the Complaint and annexes to Polish will most likely exceed the overall cost of these proceedings as well as the Respondent’s failure to comment on the language of the administrative proceedings, the Panel exercises its discretion and allow the proceeding to be conducted in English as per paragraph 11(a) of the Rules. B. Identical or Confusingly Similar The disputed domain name fully incorporates the Complainant’s CANAL PLUS mark and is identical with it. For the purpose of assessing whether a domain name is identical or confusingly similar to a trade mark or service mark, the generic Top-Level Domain (“gTLD”) suffix “.tech” may be disregarded. Therefore, the Panel finds that the disputed domain name is identical the CANAL PLUS mark and as a consequence, the Complaint meets the requirement of paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests The overall burden of proof on this element rests with the Complainant. However, it is well established by previous UDRP panel decisions that once a complainant establishes a prima facie case that a respondent lacks rights or legitimate interests in a domain name, the burden of production shifts to the respondent to rebut the complainant’s contentions. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. (See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1 and cases cited therein). The Panel notes the following circumstances presented in the Complaint in relation to any possible rights or legitimate interests of the Respondent in the disputed domain name: Accordingly, in the absence of any evidence to support a possible basis on which the Respondent may have rights or legitimate interests in respect of the disputed domain name, the Panel accepts the Complainant’s unrebutted prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and concludes that the second element of paragraph 4(a) of the Policy is satisfied. D. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires the Complainant to prove the registration as well as use in bad faith of the disputed domain name. Firstly, the disputed domain name was registered years after the Complainant registered the CANAL PLUS mark. The fact that the Complainant’s mark predates the registration of the disputed domain name as well as the global reputation of the CANAL PLUS mark indicates that the Respondent knew or should have known about the Complainant’s rights when registering the disputed domain name (Research In Motion Limited v. Privacy Locked LLC/Nat Collicot,WIPO Case No. D2009-0320; The Gap, Inc. v. Deng Youqian,WIPO Case No. D2009-0113). Secondly, the disputed domain name currently resolves to an inactive webpage, but the fact that a domain name is held passively does not prevent a finding of bad faith (Banco Bilbao Vizcaya Argentaria, S.A. v. Victor Edet Okon,WIPO Case No. D2004-0245; Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; DCI S.A. v. Link Commercial Corporation,WIPO Case No. D2000-1232). The Panel agrees with the Complainant’s contention that in the circumstances of this case, it is not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate. In the light of above, the Panel decides that paragraph 4(a)(iii) of the Policy is satisfied. 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 Piotr Nowaczyk
(a) the Respondent is not affiliated or related to the Complainant in any way;
(b) the Respondent is neither licensed nor authorized by the Complainant to use the CANAL PLUS mark;
(c) there is no evidence that the Respondent has been commonly known by the disputed domain name;
(d) the Respondent has not demonstrated use of, or demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. In particular, the use of the disputed domain name to create an inactive webpage cannot be qualified as a bona fide offering of goods or services.
Sole Panelist
Date: January 31, 2020
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