The Complainant is Jardiland, France (hereinafter, “Complainant”), represented by Fidal, France.
The Respondent is Bij Gaso, Uganda (“hereinafter “Respondent”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 29, 2020. On September 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 29, 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 October 2, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. Complainant filed an amendment on October 5, 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 October 7, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 27, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 29, 2020. The Center appointed M. Scott Donahey as the sole panelist in this matter on December 7, 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 is a French distribution company specializing in gardening, pets, and the art of living, which began operations in 1973. Complainant has a network of almost 200 stores, including one in the Commune of Longwy, France. Complaint, Annex 5. Respondent has numerous trademark registrations in various countries and internationally. Complainant first registered the trademark JARDILAND in France on July 23, 1981, under registration number 1676626. Complaint, Annex 3. Respondent registered the disputed domain name on October 21, 2019. Complaint, Annex 1. The disputed domain name consists of Complainant’s fanciful trademarked name JARDILAND followed by a dash and the word “longwy” which corresponds to the location of one of Complainant’s stores. The disputed domain name registered by Respondent resolves to a website on whose main page appears a reproduction of Complainant’s registered trademark. Complaint, Annex 6. The website is headed “Jardiland Payday Loans”. Complainant sent the Registrar of the disputed domain name a cease and desist letter, followed by numerous reminders. Complaint, Annex 8. Neither the Registrar nor Respondent replied to this letter. Complainant also sent a letter to the Registrar, requesting that the Registrar immediately suspend the website and prohibit the use of the disputed domain name. As of the filing of the Complaint, no action appears to have been taken in response to this request. 5. Parties’ Contentions A. Complainant Complainant asserts that the disputed domain name is confusingly similar to Complainant’s JARDILAND trademark. Complainant contends that Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant alleges that the disputed domain name has been registered and is being used in bad faith. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the complainant must prove each of the following: (i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and, (ii) that the respondent has no rights or legitimate interests in respect of the domain name; and, (iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The disputed domain name consists of Complainant’s fanciful JARDILAND trademark followed by a dash and the name of a commune in France, “longwy”, which is the location of one of Complainant’s retail outlets. Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s registered trademark. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the complainant, UDRP 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. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name C. Registered and Used in Bad Faith The disputed domain name is being used to resolve to a website at which Respondent uses Complainant’s trademark JARDILAND to advertise an offer of payday loans, as if such loans were being offered by and originated from Complainant. Furthermore, the disputed domain name consists entirely of Complainant’s registered trademark and a term related to one of Complainant’s physical stores. Such composition and use creates a risk of implied affiliation with Complaint, and is indicative of bad faith registration and use targeting Complainant and Complainant’s trademark. Accordingly, the Panel finds that the disputed domain name has been 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, M. Scott Donahey
Sole Panelist
Date: December 15, 2020
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