Complainant is Solvay Société Anonyme, Belgium, represented by PETILLION, Belgium.
Respondents are Martin Serge Babatounde, Côte d'Ivoire and Franck Serge, Côte d'Ivoire. 2. The Domain Names and Registrar
The disputed domain names The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 9, 2019. On December 9, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On December 12, 2019 and January 7, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on December 23, 2019, and January 7, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint or to file a separate complaint. Complainant filed amended Complaints on December 24, 2019, and January 9, 2020, including a request for consolidation of Respondents. The Registrar also indicated that the language of the Registration Agreement was French. The Center sent an email communication to Complainant in English and French, on December 23, 2019, inviting Complainant to provide sufficient evidence of an agreement between the Parties for English to be the language of the proceeding, a Complaint translated into French, or a request for English to be the language of the proceeding. Complainant filed a request for English to be the language of the proceeding on December 24, 2019. Respondents did not comment on the language of the proceeding. The Center verified that the Complaint together with the amended Complaints 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 Respondents of the Complaint, and the proceedings commenced on January 10, 2020. In accordance with the Rules, paragraph 5, the due date for Response was January 30, 2020. Respondents did not submit any response. Accordingly, the Center notified Respondents’ default on February 7, 2020 7. The Center appointed Robert A. Badgley as the sole panelist in this matter on February 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 Complainant, founded in 1863, is a Belgium-based chemical manufacturer. Complainant operates in 61 countries, and achieved net sales of EUR 10.3 billion in 2018. In August 2013, Complainant registered the word trademark SOLVAY and the stylized mark S in the European Union and in Côte d'Ivoire (Respondents’ country). These marks are registered in connection with numerous goods and services, including chemical products and financial services. Respondents registered the Domain Name According to Complainant, at least one consumer received an email from someone using the Domain Name Complainant asserts that both Domain Names were registered by the same person or entity. This is because both Domain Names resolve to websites which are virtually identical in terms of content, layout, graphics, and the like. Further, Complainant asserts, the WhoIs information for the registrant of each Domain Name lists the same postcode in the same town (Yamoussokro, Côte d'Ivoire), and lists the same contact phone number. According to Complainant, the street address associated with each of the Domain Name registrants is fictitious. 5. Parties’ Contentions A. Complainant Complainant asserts that it has satisfied all three elements required under the Policy for each of the Domain Names. B. Respondent Respondents did not reply to Complainant’s contentions. 6. Discussion and Findings 6.1. Language of the Proceeding In this case, the Complaint was submitted by the Belgian Complainant in the English language. The registration agreement pursuant to which the Domain Names were registered is in French. The Panel has discretion with regard to the language of the Administrative Panel Decision. Here, the Panel has elected to render the decision in English. This is because Respondents created a fairly elaborate website in English, and Respondents did not bother to respond to the Complaint and participate in this proceeding. 6.2. Consolidation of Respondents As a preliminary matter, the Panel concludes that the registrant of both Domain Names at issue is the same person or entity for purposes of this proceeding. As noted above, the websites to which the Domain Names resolve are virtually identical, and the registrants use the same telephone number in the WhoIs database. Respondents have not disputed Complainant’s plausible assertion that there is functionally one Respondent here (hereinafter referred to as “Respondent”). 6.3. Substantive Issues Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Names: (i) the Domain Names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and (ii) Respondent has no rights or legitimate interests in respect of the Domain Names; and (iii) the Domain Names have been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel concludes that Complainant has rights in the marks SOLVAY and S through registration and use demonstrated in the record. The Panel concludes further that the Domain Name The Panel also finds the Domain Name Although the typical “confusing similarity” analysis entails a side-by-side comparison of the mark’s characters and the Domain Name’s characters, there are circumstances under which a broader analysis may be appropriate. This approach is reflected in section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (‘WIPO Overview 3.0’), which states in part: “In specific limited instances, while not a replacement as such for the typical side-by-side comparison, where a panel would benefit from affirmation as to confusing similarity with the complainant’s mark, the broader case context such as website content trading off the complainant’s reputation, or a pattern of multiple respondent domain names targeting the complainant’s mark within the same proceeding, may support a finding of confusing similarity.” For similar reasons, the Panel in this case believes that Respondent registered the two Domain Names due to their confusing similarity with Complainant’s trademarks, noting that the Domain Names resolved to a website featuring “Solvay Finance” and Respondent clearly was using the Domain Name Complainant has established Policy, paragraph 4(a)(i). B. Rights or Legitimate Interests For each of the Domain Names, pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Names, among other circumstances, by showing any of the following elements: (i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Names or a name corresponding to the Domain Names in connection with a bona fide offering of goods or services; or (ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Names, even if you have acquired no trademark or service mark rights; or (iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The Panel concludes that Respondent has no rights or legitimate interests in respect of the Domain Names. Respondent has not come forward to explain its bona fides in connection with the Domain Names. It is undisputed that Respondent has created websites using Complainant’s SOLVAY mark without authorization and falsely holding itself out as Complainant in order to mislead consumers. Such conduct is manifestly illegitimate. Complainant has established Policy paragraph 4(a)(ii). C. Registered and Used in Bad Faith For each of the Domain Names, paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Names in “bad faith”: (i) circumstances indicating that Respondent has registered or has acquired the Domain Names primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registrations to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Names; or (ii) that Respondent has registered the Domain Names in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or (iii) that Respondent has registered the Domain Names primarily for the purpose of disrupting the business of a competitor; or (iv) that by using the Domain Names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. The Panel concludes that Respondent has registered and used the Domain Names in bad faith. The Panel finds it obvious that Respondent had Complainant and its SOLVAY and S trademarks in mind when registering the Domain Names. Respondent’s websites aim to create the impression that they are affiliated with Complainant, even to the point of listing Complainant’s physical address on the site. Respondent’s conduct, viz., setting up fake websites purporting to be affiliated with Complainant, and using the Domain Names for emails used in a likely phishing scam, is bad faith use within the meaning of the above-quoted Policy paragraph 4(b)(iv). Complainant has established Policy paragraph 4(a)(iii). 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 Names Robert A. Badgley
Sole Panelist
Date: February 22, 2020
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