The Complainant is Mistral International BV, Netherlands, represented by Inaday Merken BV, Netherlands.
The Respondent is Yi Mo Nian Ai Ni, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 6, 2020. On April 6, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 7, 2020, 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 April 8, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 28, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 29, 2020. The Center appointed George R. F. Souter as the sole panelist in this matter on May 5, 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 Dutch company which has, since 1976, traded in windsurfing and water sports activities and articles under its trademark MISTRAL. It is the proprietor of over 400 trademark registrations of its trademark MISTRAL, including International Registration No. 633370 and United States of America Registration No. 1131832. Since 1987, the Complainant has traded in holidays for clients to experience the coastal life, including water sports activities and equipment, under its trademark CLUB MISTRAL. Details of the Complainant’s trademark registrations have been supplied to the Panel. These include International Registration No. 1025656. Details of the Complainant’s activities under its CLUB MISTRAL trademark in connection with holidays in tropical beach resorts internationally have been supplied to the Panel. The disputed domain name was registered on March 19, 2020, resolves to a webpage containing pay-per-click links and is also offered for sale. 5. Parties’ Contentions A. Complainant The Complainant alleges that the disputed domain name is confusingly similar to its MISTRAL and CLUB MISTRAL trademarks, containing its CLUB MISTRAL trademark in its entirety, with the mere addition of the descriptive or non-distinctive element “Barbados”. The Complainant alleges that the Respondent lacks rights or legitimate interests in the disputed domain name, in particular the Complainant has never granted permission to the Respondent to use either its trademark MISTRAL or CLUB MISTRAL trademarks in connection with a domain name registration, or otherwise, and, to the best of the Complainant’s knowledge, the Respondent is not generally known by the disputed domain name. The Complainant alleges that the disputed domain name was registered in bad faith, and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant: (i) the disputed domain name is identical or confusingly similar to a trademark 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. A. Identical or Confusingly Similar It is well-established in prior decisions under the UDRP, with which the Panel agrees, that a generic Top-Level Domain (“gTLD”) indicator is irrelevant when comparing a trademark with a disputed domain name. Accordingly, the Panel considers the “.com” indicator to be irrelevant in the circumstances of the present case, and so finds. It has been well-established in prior decisions under the UDRP that a disputed domain name which wholly contains a complainant’s trademark together with the mere addition of descriptive or non-distinctive elements is insufficient to avoid a finding of confusing similarity between a trademark and a disputed domain name. In the circumstances of the present case, the Panel considers the element “Barbados” to be clearly a descriptive or non-distinctive element, does not distract from the Complainant’s CLUB MISTRAL trademark, which is clearly recognizable in the disputed domain name. The Panel, accordingly, finds that the disputed domain name is confusingly similar to the Complainant’s MISTRAL trademark, and that the Complainant has satisfied the test of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests It is the consensus view of UDRP panels, with which the Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy. The Panel considers the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case. Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name can lead, in appropriate circumstances, to a finding of registration of a disputed domain name in bad faith. The circumstance of the present case, in which the Panel can find no rational reason for the adoption of the disputed domain name other than it was in a deliberate attempt to profit from the goodwill enjoyed by the Complainant’s MISTRAL and CLUB MISTRAL trademarks, appear to the Panel to be sufficient to find that the disputed domain name was registered in bad faith, and the Panel so finds. It is well-established in prior decisions under the UDRP that the use of a disputed domain in connection with a pay-per-click website offering similar goods or services to those traded in by the complainant constitutes use of the disputed domain name in bad faith. This is clearly the case in the circumstances of the present case, and the Panel accordingly finds that the disputed domain name is being used in bad faith. In addition, the Panel notes that the disputed domain name is offered for sale, which is further evidence of bad faith. Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) 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 George R. F. Souter
Sole Panelist
Date: May 19, 2020
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