Complainant is Union InVivo, France, represented by Fidal, France.
Respondent is Kim Dushinski, United States of America (“United States”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 13, 2020. On May 14, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 14, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on May 21, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on May 25, 2020. The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on May 26, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 15, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 16, 2020. The Center appointed Roberto Bianchi as the sole panelist in this matter on June 23, 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 Union InVivo is a French federation of cooperatives created in 2001 as a result of the merger of the agricultural cooperative entities Sigma and Uncaa. Complainant is France’s leading agricultural cooperative group, with a network of 201 cooperatives. Complainant has 5,500 employees. Complainant owns, inter alia, the following trademarks: France: INVIVO, Registration No. 4288686, Registration date July 21, 2016, covering services in classes 35, 36, 37, and 44. France: INVIVO and design, Registration No. 3914360, Registration date April 19, 2012, covering goods and services in classes 1, 5, 31, 31, 42, and 44. France: UNION INVIVO, Registration No. 3130855, Registration Date November 13, 2001, covering goods and services in classes 1, 5, 30, 31, 39, 42, 43, 44, and 45. European Union: UNION INVIVO, Registration No. 009969544, Registration Date July 10, 2013, filed on May 16, 2011, covering goods and services in classes 1, 5, 31, 39, and 42. Complainant also owns numerous domain names containing its mark INVIVO plus the term “group”, inter alia, The disputed domain name was registered on May 8, 2019. At the time of rendering this Decision, the disputed domain name resolved to a website with an initial page displaying the following “related searches”, “Blog”, “GeoCities”, “Jobs”, “U.S. Yellow Pages”, “Hot Jobs” and “Yahoo! Shopping”. In turn, these “related searches” redirect to websites apparently unrelated to Complainant, its INVIVO marks, or its activities or services. 5. Parties’ Contentions A. Complainant Complainant contends as follows: The disputed domain name is identical or confusingly similar to the INVIVO trademark in which Complainant has rights, incorporated in its entirety in the disputed domain name. Respondent has no rights or legitimate interests in respect of the disputed domain name. The mark INVIVO is naturally associated with Complainant, since it has been used to identify the goods and services rendered by Complainant for years. There is no business or legal relationship between Complainant and Respondent. Respondent has not been authorized by Complainant to use the mark INVIVO. In addition, the disputed domain name is not really used since it resolves to a parking webpage. The disputed domain name has not been registered for a business project since this would infringe Complainant’s IP rights. The disputed domain name was registered and is being used in bad faith, with the aim of taking advantage of the reputation of Complainant’s trademark INVIVO. Respondent registered the disputed domain name long after Complainant established its rights in the INVIVO trademarks in France and Europe. The disputed domain name is inactive, and there is no real and substantial offering of goods and/or services on the associated website. In any case, the passive holding of a domain name does not prevent a finding of bad faith because it was registered to take advantage of the reputation of Complainant and to harm Complainant’s business and projects. Respondent’s use of the disputed domain name also constitutes bad faith. The disputed domain name resolves to a parking website, which indicates that there has been no use in good faith in connection with the disputed domain name. See Boursorama S.A. contre Eurl Heranval, WIPOCase No. D2017-0179. Annex 9 to the Complaint. Respondent’s use of a proxy service to hide its true identity further evidences bad faith registration and use. It is impossible to conceive of any use of the disputed domain name that it is not illegitimate, for example to impersonate Complainant, deceive consumers or create confusion with Complainant’s trademarks. The concept of a domain name “being used in bad faith” is not limited to positive action; inaction is within the concept. That is to say, it is possible, in certain circumstances, for inactivity by the respondent to amount to the domain name being used in bad faith (Telstra Corporation Limited v. Nuclear Marshmallows,WIPOCase No. D2000-0003. See also Confédération Nationale du Crédit Mutuel contre “Nom Anonymisé”,WIPO Case No. D2017-0693. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Panel is satisfied that Complainant owns registrations for its INVIVO and UNION INVIVO marks and for other marks containing the “invivo” element or phrase in France and the European Union. See section 4 above. The Panel notes that in the disputed domain name the INVIVO mark is incorporated in its entirety, to which a hyphen and the term “grovp” (clearly a typo for the generic term “group”) are added. Considering that the relevant element in the disputed domain name is Complainant’s mark INVIVO, such additions would not prevent a finding of confusing similarity under Policy, paragraph 4(a)(i). See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8. Moreover, Complainant is precisely a “union”, i.e., a group of cooperative entities, to which the term “grovp” (a misspelling of “group”) is aurally close and semantically identical. For these reasons, the Panel concludes that the disputed domain name is confusingly similar to Complainant’s marks INVIVO and UNION INVIVO. B. Rights or Legitimate Interests The Panel notes that the Invivo Group, i.e., Complainant, is well known in respect of agricultural products and services in general. In fact, a Google search for the “Invivo Group” terms conducted by the Panel on July 1, 2020, revealed that the first sixteen results referred to or were related to Complainant. For its part, the registrant of the disputed domain name, i.e., Respondent, is “Kim Dushinski”, and there is no evidence that this person is known by the disputed domain name. This excludes the application of Policy, paragraph 4(c)(ii). Complainant says it has no relationship of any kind with Respondent, and the Panel does not see any contrary evidence on the casefile. The content of the website at the disputed domain name rather suggests that Respondent was aware of Complainant’s renown, because Respondent is trying to extract a profit from the confusion it created among Internet users via a click-through scheme. Clearly, this use of the disputed domain name is neither a bona fide use pursuant to Policy, paragraph 4(c)(i) nor a legitimate noncommercial or fair use without intent for commercial gain to misleadingly divert consumers presumably looking for Complainant, according to Policy, paragraph 4(c)(iii). In the view of the Panel, Complainant has succeeded in raising a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. For its part, Respondent failed to provide any explanation or reasons for having registered the disputed domain name, or for using it as shown. Therefore, the Panel finds that Respondent does not have any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith Complainant, created in 2001 as a result of the merger of two important groups of French agricultural cooperatives, has shown to the satisfaction of the Panel that it owns a registration for the INVIVO mark since 2001, i.e., over 18 years before the registration of the disputed domain name. See section 4 above. In addition, a Google search conducted by the Panel revealed that Complainant’s Invivo Group has an important presence on the Internet. See section 6B above. It is more likely than not that Respondent, noticing that Complainant had already registered the As shown above, Respondent is using the disputed domain name in a website displaying “related searches” that redirect to websites entirely unrelated to Complainant. Presumably, Respondent has the purpose of generating click-through income, and profit from the confusion of Internet users looking for Complainant and its Invivo products and services. By acting in such a manner, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with Complainant’s INVIVO marks as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location. According to Policy, paragraph 4(b)(iv), this is a circumstance of registration and use of the disputed domain name in bad faith. The Panel finds that the disputed domain name was registered and is being used in bad faith. 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 Roberto Bianchi
Sole Panelist
Date: July 6, 2020
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