The Complainant is Europe 1 Telecompagnie, France, represented by GPI MARQUES, France.
The Respondent is Betowin Limited, United Kingdom. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 21, 2020. On July 21, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 23, 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 the Complainant on July 23, 2020, 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 July 24, 2020. 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”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 29, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 18, 2020. The Center received several emails in French from the Respondent on July 29, 2020, and as a result the Complainant requested to suspend the proceedings. The proceeding was suspended on August 4, 2020, and reinstituted on September 3, 2020. After the reinstitution the response due date was September 17, 2020. Accordingly, the Center sent an email commencing the Panel Appointment on September 18, 2020. The Center appointed Christopher J. Pibus as the sole panelist in this matter on September 24, 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 operates a well-known radio station called Europe 1 in France. Europe 1 began broadcasting in 1955 and it has been operating for over 65 years, providing primarily news and cultural programming. The Complainant owns the following trademark registrations: European Union trademark Registration No. 2956720 for EUROPE 1 Design registered on September 22, 2004; French trademark Registration No. 3745320 for EUROPE 1 registered on June 10, 2010; The disputed domain name The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s registered trademark for EUROPE 1. The disputed domain name contains the Complainant’s registered trademark in its entirety and the addition of the term “finance” does not distinguish the disputed domain name. The Respondent is not affiliated with the Complainant in any way. The Complainant has not authorized, licensed or permitted the Respondent to use its registered trademark. The Respondent is using the disputed domain name, which is confusingly similar to the Complainant’s registered trademark, in association with a website and email addresses which operate and facilitate fraudulent scams to obtain money from Internet users seeking the Complainant. This use is not considered a bona fide offering of goods and/or services under the Policy. Accordingly, the Complainant submits that the Respondent does not have any rights or legitimate interests in the disputed domain name. The Respondent has registered and used the disputed domain name in bad faith. The Complainant contends that the Respondent was aware of the Complainant and the Complainant’s registered trademark when it registered the disputed domain name. The Complainant is well-known throughout Europe, including the United Kingdom where the Respondent is located. The Respondent’s fraudulent emails and advertising links are written in French, which represents a direct link to the Complainant’s audience in France. The Respondent is using the disputed domain name to operate a large scale financial scam. B. Respondent The Respondent did not formally reply to the Complainant’s contentions. The Respondent did send several emails in French on July 29, 2020 claiming that its company had not been active since 2019 and offering to delete the disputed domain name. It also explained « Notre équipe propose également des services d'hébergement et d'achat de nom de domaine. Suite à une erreur de jugement concernant une demande d'un client nous avons acheté le nom [de domaine] sans nous rendre compte qu'il pouvait ressembler à une autre entité. Nous n'avons bien sûr rien à voir avec le développement du site internet. De ce fait le nom [de domaine] sera immédiatement effacé. » After the Respondent’s e-mails were sent, the proceedings were suspended at Complainant’s request. No resolution of the proceeding was reached, and the disputed domain name was not voluntarily cancelled or transferred by Respondent. The proceeding was reinstated, and no formal response was ever received. 6. Discussion and Findings According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements: (i) the disputed domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights; (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 The Panel finds the Complainant does have registered rights in the trademark EUROPE 1. The Panel finds that the disputed domain name Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests As the Complaint states, useful commentary on the burden of proof for rights or legitimate interests can be found at the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1: “While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”. Based on the evidence filed in this proceeding, the Panel finds that the Complainant has made out a prima facie case with respect to the Respondent’s lack of rights or legitimate interests. The Complainant clearly owns rights in the EUROPE 1 trademark as noted in section 4 of this Decision. The Panel acknowledges that the Complainant’s EUROPE 1 trademark is well-known and accordingly it is unlikely that the Respondent was unaware of the Complainant’s trademark rights when he registered the disputed domain name. In particular, the Panel notes that the Respondent is using the disputed domain name in association with emails and campaign links which are written in French, which is a direct link to the Complainant’s business. In the circumstances of this case, the composition of the disputed domain name, incorporating the entirety of Complainant’s trademark reveals an intention to capitalize on the Complainant’s goodwill and reputation. See WIPO Overview 3.0, section 2.5.1. The Respondent’s use of the confusingly similar domain name to facilitate a fraudulent financial scam is not a bona fide use of the disputed domain name under the Policy. As a result, the burden of production shifts to the Respondent to bring forward evidence of rights or legitimate interests. The Respondent did not respond to the Complainant. Accordingly, the Panel finds that the Complainant is deemed to have satisfied the requirements under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Respondent registered the disputed domain name, which incorporates the Complainant’s well-known EUROPE 1 trademark in its entirety, in order to divert Internet users seeking the Complainant’s website and programming. The Respondent is using the confusingly similar disputed domain name as a platform for associated email addresses as part of a fraudulent scheme to generate revenue and to obtain financial information from unsuspecting consumers. Fraudulent activity of this nature is compelling evidence of bad faith. Accordingly, the Panel finds there is sufficient evidence of bad faith under the Policy, particularly in the absence of any response or explanation on the part of the Respondent. The Complainant has therefore satisfied the requirements under 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 Christopher J. Pibus
French trademark Registration No. 3366130 for EUROPE 1 Design registered on June 20, 2005;
French trademark Registration No. 3745316 for EUROPE 1 Design registered on June 10, 2010.
Sole Panelist
Date: October 5, 2020
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