The Complainant is Compagnie Generale des Etablissements Michelin, France, represented by Tmark Conseils, France.
The Respondent is fengyun, 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 May 31, 2021. On May 31, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 2, 2021, 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 June 2, 2021 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 June 3, 2021. 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 June 11, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 1, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 7, 2021. The Center appointed Gregor Vos as the sole panelist in this matter on July 15, 2021. 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. In accordance with paragraph 10(c) of the Rules, the Panel has extended on its own motion the period to forward its decision to the Center due to exceptional circumstances. 4. Factual Background The Complainant is a well-known French company commonly known as the Michelin group and is the owner of multiple brands for tires, among which the brand Kleber. The Complainant is the owner of inter alia the following European Union (“EU”) and international trademark registrations (hereinafter jointly referred to as: the “Trademarks”): - EU registration No. 011369782 KLEBER registered on April 12, 2013; - International registration No. 725741 KLEBER registered on January 5, 2000; - International registration No. 414195 registered on February 28, 1975; and - International registration No. 413023 registered on December 16, 1974. Further, it is undisputed that the Complainant is the holder of inter alia the following domain names: - - The Domain Name was registered on March 25, 2021 by the Respondent and currently resolves to a website displaying pornographic content and links redirecting to third-party gambling websites. 5. Parties’ Contentions A. Complainant With the Complaint, the Complainant seeks that the Domain Name is transferred to the Complainant. The Complaint is based on the following factual and legal grounds: the Domain Name is identical or confusingly similar to the Trademarks of the Complainant, the Respondent has no rights or legitimate interests in the Domain Name and the Domain Name has been registered and is being used in bad faith. Firstly, according to the Complainant, the Domain Name is identical or confusingly similar to its well-known Trademarks. The Trademarks are reproduced identically in the Domain Name and the addition of the generic Top-Level Domain “.com” and the letters “dr” should be disregarded when evaluating the identity or confusing similarity of the Trademarks to the Domain Name. Secondly, according to the Complainant, the Respondent has no rights or legitimate interests in the Domain Name. The Complainant is the sole legitimate owner of the Trademarks and domain names that incorporate the Trademarks. Further, the Complainant has not authorized the Respondent to use the Trademarks in the Domain Name and the Respondent seeks to take commercial advantage of the Complainant’s Trademarks. Also, the Respondent has no earlier rights to or legitimate activity under the Domain Name. Finally, according to the Complainant, the Respondent has registered and is using the Domain Name in bad faith. In light of the well-known character of the Complainant’s Trademarks, it is inconceivable that the Respondent selected the Domain Name for any other reason than to mislead Internet users and create a likelihood of confusion with the Trademarks. Also, the Respondent’s use of the Domain Name constitutes bad faith, since the website linked to the Domain Name redirects to pornographic videos and third-party gambling services, which tarnishes the Complainant’s Trademarks. Such activities are disruptive to the Complainant’s business and show the Respondent’s attempt to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s Trademarks as to the source, sponsorships affiliation, or endorsement of this website or of a product or service on his website, and are therefore evidence of the Respondent’s registration and use of the Domain Name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In view of the lack of a response filed by the Respondent as required under paragraph 5 of the Rules, this proceeding has proceeded by way of default. Hence, under paragraphs 5(f), 14(a) and 15(a) of the Rules, the Panel is directed to decide this administrative proceeding on the basis of the Complainant’s undisputed factual presentations. For the Complainant to succeed, it must prove, within the meaning of paragraph 4(a) of the Policy and on the balance of probabilities that: i. the Domain Name is identical or confusingly similar to a trademark or a service mark in which the Complainant has rights; ii. the Respondent has no rights or legitimate interests in respect of the Domain Name; and iii. the Domain Name has been registered and is being used in bad faith. Only if all three elements have been fulfilled, the Panel is able to grant the remedies requested by the Complainant. The Panel will deal with each of the requirements in turn. A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy requires the Complainant to show that the Domain Name is (i) identical or confusingly similar to a trademark or service mark, (ii) in which the Complainant has rights. With respect to having rights pursuant to paragraph 4(a)(i) of the Policy, it is noted that the Complainant is registered as the owner of numerous trademarks for KLEBER. Consequently, the Panel finds that the Complainant has proven that it has rights in the Trademarks. With regard to the assessment of identity or confusing similarity of the Domain Name with the Trademarks, it is generally accepted that this test involves a reasoned but relatively straightforward comparison between the Complainant’s Trademarks and the Domain Name (see section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). In cases where a domain name incorporates the entirety of a trademark the domain name will normally be considered confusingly similar to that mark (see section 1.7 of the WIPO Overview 3.0). In the present case, the Trademarks are incorporated in their entirety in the Domain Name. The addition of the generic Top-Level Domain “.com” and the letters “dr” does not prevent a finding of confusing similarity with the Trademarks (see sections 1.8 and 1.11 of the WIPO Overview 3.0). Consequently, the Panel finds that the requirement under paragraph 4(a)(i) of the Policy has been satisfied. B. Rights or Legitimate Interests The second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the Domain Name. The onus of proving this requirement, like each element, falls on the Complainant. Given the difficulty in proving a negative, however, it is usually sufficient for a complainant to make out a prima facie case that a respondent lacks rights or legitimate interests. If a complainant does establish a prima facie case, the burden of production shifts to the respondent (see, e.g. WIPO Overview 3.0, section 2.1; Sanofi v. Cimpress Schweiz GmbH, WIPO Case No. D2017-0522). Paragraph 4(c) of the Policy lists three non-limitative examples of instances in which a respondent may establish rights or legitimate interests in the disputed domain name. The Complainant has substantiated that none of these circumstances apply in this case. By defaulting, the Respondent has failed to address the prima facie case thus established by the Complainant. Furthermore, based on the record before it, the Panel does not see an indication that any of the circumstances of paragraph 4(c) of the Policy is present. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. Paragraph 4(a)(ii) is thereby fulfilled. C. Registered and Used in Bad Faith Under paragraph 4(a)(iii) of the Policy, a complainant must show that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy lists four non-limitative circumstances which may be considered as evidence of registration and use in bad faith of a domain name. The Trademarks are registered by the Complainant and have been used for many years. The Complainant’s rights to the Trademarks predate the registration date of the Domain Name. In light of the well-known character of the Trademarks, the Panel agrees with the Complainant that it is not conceivable that the Respondent chose the Domain Name without knowledge of the Complainant’s activities and its Trademarks under which the Complainant is doing business. The well-known character of the Trademarks of the Complainant has been confirmed by earlier panels (see e.g. Compagnie Générale des Etablissements Michelin and Michelin Recherche et Technique S.A. v. PrivacyDotLink Customer 1220239, PrivacyDotLink Customer 1220680, PrivacyDotLink Customer 1235536 / ALEX HVOROST,WIPO Case No. D2016-1991). In the present case, the content of the Respondent’s website that is linked to the Domain Name contains pornographic content and links to third-party gambling websites, which in the circumstances of this case is evidence of bad faith registration and use of the Domain Name under paragraph 4(b)(iv) of the Policy. Accordingly, the Panel finds that the Domain Name has been registered and is being used in bad faith and that the third element of paragraph 4(a)(iii) of the Policy is fulfilled. 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 Gregor Vos
Sole Panelist
Date: August 6, 2021
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