The Complainant is Compagnie Générale des Etablissements Michelin, France, represented by Dreyfus & associés, France.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Elaine Hall, 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 October 28, 2020. On October 28, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 28, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 30, 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 November 2, 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 November 10, 2020. In accordance with the Rules, paragraph 5, the due date for Response was November 30, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 3, 2020. The Center appointed Jon Lang as the sole panelist in this matter on December 8, 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 leading tire company and is headquartered in France. It is present in 171 countries, has more than 114,000 employees and operates 69 tire manufacturing facilities and sales agencies in 17 countries. The Michelin Group is the leader in tire technology for every type of vehicle. The Michelin brand is the top-selling tire brand worldwide. The Complainant also provides digital services, maps and guides to help enrich travel. The MICHELIN Guide was first launched in 1920 in order to help motorists plan their trips, boosting car sales and in turn, tire purchases. In 1926, the Guide began to award stars for fine dining establishments, initially marking them only with a single star. Five years later, a hierarchy of zero, one, two and three stars was introduced and in 1936, the criteria for the starred rankings was published. The Complainant owns numerous MICHELIN trademark registrations around the world e.g. United States trademark “MICHELIN” No. 5088515, filed on July 14, 2014 and registered on November 22, 2016; United States trademark “MICHELIN” No. 4126565, filed on January 19, 2011 and registered on April 10, 2012, and United States trademark “MICHELIN” No. 0892045, filed on June 5, 1969 and registered on June 2, 1970. In addition, the Complainant operates, amongst others, the The Complainant and its trademark, MICHELIN enjoy a worldwide reputation. The domain name in dispute The Domain Name resolves to a parking page displaying commercial links relating to the Complainant’s field of activity. Moreover, it is linked with various email servers e.g. alt1.aspmx.l.google.com, giving rise to a risk of potential phishing activity. Before bringing these UDRP proceedings, the Complainant sent a cease-and-desist letter requesting a transfer of the Domain Name. The Respondent did not respond. 5. Parties’ Contentions A. Complainant The following is brief summary of the key assertions of the Complainant. The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights The Domain Name is confusingly similar to the Complainant’s MICHELIN trademark. It deliberately misspells the Complainant’s trademark by putting the letters “r” and “n” next to each other, thereby creating a resemblance to the letter “m”. This increases the likelihood of confusion among Internet users who could be led to believe that the Domain Name will direct them to the official website of the Complainant. In other words, the Respondent is “typosquatting”. The Domain Name imitates the MICHELIN trademark which previous UDRP panels have said to be “well known” or “famous”. The inclusion of a confusingly similar approximation of the MICHELIN trademark enhances the false impression that the Domain Name is somehow officially related to the Complainant. It is likely to confuse inattentive Internet users into believing that it will direct them to the official website of the Complainant, perhaps resulting in an unsuspecting Internet user assuming that the site to which the Domain Name resolves displays official information about the Complainant’s businesses. The extension “.com” is not to be taken into consideration when examining the identity or similarity between the Complainant’s trademark and Domain Name. By registering the Domain Name, the Respondent has created a likelihood of confusion with the Complainant’s trademark. The Respondent has no rights or legitimate interests in respect of the Domain Name The Respondent is neither affiliated with the Complainant nor authorized by the Complainant to use and register its trademark, or to seek registration of any domain name incorporating it. No prior rights or legitimate interest in the Domain Name can be claimed as the MICHELIN trademark precedes registration of the Domain Name. There is no evidence to suggest that the Respondent is commonly known by the Domain Name or the name “MICHELIN”. The Domain Name resolves to a pay-per-click parking page, likely generating revenue, displaying commercial links, some of which are related to cartographic and automotive products and services, and some being those of the Complainant. The Domain Name is so confusingly similar to the MICHELIN trademark that the Respondent could not reasonably suggest it was intended to be used for a legitimate activity. The composition of the Domain Name constitutes clear evidence that the Respondent wished to give the overall impression that it related to the Complainant so as to misleadingly divert consumers for commercial gain. Given that e-mail servers have been configured to be used with the Domain Name, there might be a risk that the Respondent is engaged in a phishing scheme. The Domain Name was registered and is being used in bad faith Registration in bad faith It is implausible that the Respondent was unaware of the Complainant when it registered the Domain Name. The composition of the Domain Name (which imitates the MICHELIN trademark), would seem to confirm this. Bad faith can be found where a domain name is so obviously connected with a well-known trademark that its very use by someone with no connection to the trademark suggests opportunistic bad faith. Given the reputation of the MICHELIN trademark, registration in bad faith can be inferred. The use of the letters “r” and “n” next to each to create a visual resemblance to the letter “m”, is a form of typosquatting which is in itself evidence of bad faith. The Complainant’s MICHELIN trademark registrations significantly predate the registration date of the Domain Name. Under paragraph 2 of the Policy, a registrant represents and warrants to the registrar that, to his knowledge, registration of the domain name will not infringe the rights of any third party. Thus, it was the Respondent’s duty to verify that registration of the Domain Name would not infringe the rights of any third party before effecting registration. A “MICHELIN” trademark search would have revealed the existence of the Complainant and its trademark. The Respondent’s failure to carry out such a search is a contributing factor to its bad faith. In any event, a simple search via Google or any other search engine using the keyword “michelin”, demonstrates that all initial results relate to the Complainant’s products or news. The Respondent could not have chosen the Domain Name for any reason other than to deliberately cause confusion amongst Internet users as to its source, in order to take unfair advantage, for commercial gain, of the Complainant’s goodwill and reputation. This clearly constitutes bad faith. Use in bad faith The Respondent is using the Domain Name to intentionally attract Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the services offered on the Respondents’ website (being a parking page displaying commercial links related to the Complainant’s fields of activity). Internet users could reasonably believe that, in some way, the Domain Name is linked to the Complainant or that it is registered by the Complainant. The Domain Name clearly constitutes a typosquatting variant of the Complainant’s trademark thereby leading Internet users to believe that they are being directed to the MICHELIN website. The Respondent is trying to benefit from the fame of the Complainant’s trademark. It is more likely than not that the Respondent’s primary motive in registering and using the Domain Name was to capitalize on or otherwise take advantage of the Complainant’s trademark rights through the creation of initial interest confusion. Given that e-mail servers have been configured for use with the Domain Name, there might also be a risk that the Respondent is engaged in a phishing scheme. The use of an email address associated with the Domain Name presents a significant risk. The Respondent failed to provide full contact information and has failed to respond to the Complainant’s pre-complaint correspondence. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy requires a complainant to prove that a respondent has registered a domain name which is: (i) identical or confusingly similar to a trademark or service mark in which a 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 complainant must prove each of these three elements to succeed. A. Identical or Confusingly Similar The Complainant clearly has rights in its MICHELIN trademark. Ignoring the generic Top-Level Domain (“gtLD”) “.com” (as the Panel may do for comparison purposes), the Domain Name comprises a very close approximation to the MICHELIN trademark in that the first two letters of the Domain Name, “r” and “n”, given their proximity, create the appearance of the letter “m”, the first letter of the trademark, which is then followed by the remaining letters of the trademark, to give the overall visual impression of a domain name identical to the MICHELIN trademark. However, as the MICHELIN trademark and Domain Name are not in fact identical, the issue of confusing similarity must be considered. Application of the confusing similarity test under the UDRP typically involves a comparison, on a visual or aural level, between the trademark and the domain name. The MICHELIN trademark is clearly recognizable within the Domain Name. The substitution of the letters “r” and “n” for the letter “m”, does little to diminish the visual impression created by the Domain Name, i.e. that it is identical to the Complainant’s MICHELIN trademark. To create such a visual impression was no doubt the very purpose in the Respondent choosing the Domain Name. Given the substitution of the letters “r” and “n” for the letter “m”, the Domain Name and trademark cannot be said to be identical, but the Domain Name is certainly confusingly similar to the Complainant’s MICHELIN trademark (and easily mistaken for being identical). The Panel therefore finds this to be a clear case of “typosquatting” wherein the Respondent has misspelled the MICHELIN trademark. The Panel finds that the Domain Name is confusingly similar to the MICHELIN trademark for the purposes of the Policy and thus paragraph 4(a)(i) of the Policy has been established. B. Rights or Legitimate Interests By its allegations, the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. Accordingly, the burden of production shifts to the Respondent to come forward with arguments or evidence demonstrating that it does in fact have such rights or legitimate interests. The Respondent has not done so and accordingly, the Panel is entitled to find, given the prima facie case made out by the Complainant, that the Respondent indeed lacks rights or legitimate interests in the Domain Name. Despite the lack of any answer to the Complaint however, the Panel is entitled to consider whether there would be anything inappropriate in such a finding. A respondent can show it has rights to or legitimate interests in a domain name in various ways even where, as is the case here, it is not licensed by or affiliated with a complainant. For instance, a respondent can show that it has been commonly known by the domain name or that it is making a legitimate noncommercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. A respondent can also show that it is using a domain name in connection with a bona fide offering of goods or services. The Domain Name resolves to a parking page displaying commercial links related to the Complainant’s fields of activity. One of the links is in fact described as “Michelin”. Section 2.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), in considering parking pages in the context of rights or legitimate interests, states that: “Applying UDRP paragraph 4(c), panels have found that the use of a domain name to host a parked page comprising PPC links does not represent a bona fide offering where such links compete with or capitalize on the reputation and goodwill of the complainant’s mark or otherwise mislead Internet users. Panels have recognized that the use of a domain name to host a page comprising PPC links would be permissible – and therefore consistent with respondent rights or legitimate interests under the UDRP – where the domain name consists of an actual dictionary word(s) or phrase and is used to host PPC links genuinely related to the dictionary meaning of the word(s) or phrase comprising the domain name, and not to trade off the complainant’s (or its competitor’s) trademark”. The Respondent is not known by the Domain Name. The Domain Name was designed to be mistakenly seen as identical to the MICHELIN trademark so as to mislead Internet users for commercial gain. In these circumstances, it cannot be said that there is legitimate noncommercial or fair use without intent for commercial gain to mislead. Or a bona fide offering of goods or services. There is no evidence before this Panel to suggest that the Respondent has rights or legitimate interests in the Domain Name. The Respondent has not come forward with a Response and did not engage with the Complainant prior to commencement of these proceedings. It can only be assumed that there is nothing the Respondent could say that might support an assertion that it does in fact have rights or legitimate interests. The contentions of the Complainant, by which it has made out a prima facie case that the Respondent has no rights or legitimate interests, have not been contradicted or challenged, or cast into doubt by the brief analysis set out above. Accordingly, the Panel finds that the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Respondent has no legitimate rights or interests in the Domain Name. The Domain Name is confusingly similar to the MICHELIN trademark in that it may well be mistaken as being identical. This, of course, was very likely to have been the intention of the Respondent. The Panel is satisfied that the Respondent has engaged in typosquatting – the deliberate but usually minor misspelling of another’s trademark to mislead – which is exactly the sort of abusive conduct to which the Policy is directed and in and of itself evidence of bad faith. Moreover, one of the non-exhaustive examples of circumstances described in paragraph 4(b) of the Policy as being indicative of bad faith registration and use, is the respondent being shown to have intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website or of products or services on it. These appear to be the circumstances in this case. The Panel finds that, for the purposes of the Policy, there is evidence of both registration and use of the Domain Name 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 Domain Name Jon Lang
Sole Panelist
Date: December 22, 2020
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