The Complainant is Compagnie Générale des Etablissements Michelin, France, represented by Dreyfus & associés, France.
The Respondent is Super Privacy Service LTD c/o Dynadot, United States of America (“United States” or “U.S.”) / Reed Mueller, 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 June 4, 2021. On June 7, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 15, 2021, 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 June 15, 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 18, 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 24, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 14, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 15, 2021. The Center appointed Peter Burgstaller as the sole panelist in this matter on July 21, 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. 4. Factual Background The Complainant is the owner of the famous and distinctive mark MICHELIN which is well known throughout the world since decades (Annexes 3 and 6 to the Complaint). The Complainant owns trademark registrations for the mark MICHELIN worldwide, inter alia, in the U.S., the European Union (“EU”) and in many other countries through an International trademark registration from 2001, for example, International registration for MICHELIN No. 771031, registered on June 11, 2001 (Annex 4 to the Complaint). The Complainant owns the domain names The disputed domain name The disputed domain name randomly redirects towards various different webpages, including the malicious website that attempted to install malware, and the website displaying pay-per-click links that were related to tires. Moreover, an email server has been configured on the disputed domain name (Annex 1 to the Complaint). 5. Parties’ Contentions A. Complainant Under its brand name Michelin, the Complainant has innovated constantly since 1889 to facilitate the mobility of people and goods, thus contributing to the advancement of human progress. Today, the Complainant is the leader in tire technology for every type of vehicle, leveraging its expertise in high-tech materials to deliver services and solutions that increase travel efficiency and products that enable customers to enjoy unique mobility experiences. The Michelin brand is the top-selling tire brand worldwide and it is the No. 1 source of innovation in the global tire industry. Moreover, the Complainant launched the Michelin Guide in 1920 in order to help motorists plan their trips - thereby 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 were published. For the first time, the Michelin Guide included a list of hotels in Paris, lists of restaurants according to specific categories, as well as the abandonment of paid-for advertisements in the guide. The Complainant and its trademark MICHELIN enjoy a worldwide reputation and the Complainant owns numerous MICHELIN trademark registrations around the world including the U.S. trademark MICHELIN No. 77977654, registered on September 15, 2009, covering goods and services in classes 3, 5, 7, 8, 9, 11, 12, 16, 20, 25, 27 and 28; the EU trademark MICHELIN No. 013558366, registered on April 17, 2015, covering goods and services in classes 9, 35, 38, 39, 41 and 42 and the International trademark registration for MICHELIN No. 771031, registered on June 11, 2001, covering goods and services in classes 5, 7, 8, 9, 10, 11, 12, 16, 17, 18, 20, 21, 24, 25, 39 and 42. Moreover, the Complainant owns the domain names The Complainant asserts that the disputed domain name reproduces the trademark MICHELIN in its entirety with the mere addition of the letter “l”. Therefore, the disputed domain name is confusingly similar to the Complainant’s MICHELIN trademark. The Respondent is neither affiliated with the Complainant in any way nor has it been authorized by the Complainant to use and register its trademark, or to seek registration of any domain name incorporating the said trademark. Furthermore, the Respondent cannot claim prior rights or legitimate interests in the disputed domain name as the MICHELIN trademark precedes the registration of the disputed domain name for years. Finally, the Respondent is not commonly known by the disputed domain name or the name Michelin. It is implausible that the Respondent was unaware of the Complainant and its trademark MICHELIN when it registered the disputed domain name. Moreover, the disputed domain name redirected randomly to fraudulent websites, including the malicious website that attempted to install malware; furthermore, an email server was configured on the disputed domain name The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, the Complainant must prove that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests with respect to 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 Complainant submitted evidence, which incontestably and conclusively establishes rights in the trademark MICHELIN. The Panel finds that the disputed domain name Finally, suffixes such as a generic Top-Level Domain (“gTLD”) are viewed as a standard registration requirement and as such are disregarded under the first element confusing similarity test (see section 1.11 of the WIPO Overview 3.0); therefore, a gTLD would not negate a finding of confusing similarity, as it does in the present case. The Panel therefore finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy. 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 (see section 2.1 of the WIPO Overview 3.0). Furthermore, the nature of the disputed domain name, it consists of a common, obvious, or intentional misspelling of the Complainant’s famous and distinctive trademark, together with the Complainant’s contentions that the Respondent has no rights or legitimate interests in the disputed domain name, that the Respondent has no connection or affiliation with the Complainant, that the Respondent has not received any license or consent, express or implied, to use the Complainant’s trademarks MICHELIN in a domain name or in any other manner, and that the disputed domain name randomly redirects towards various different webpages, including the malicious website that attempted to install malware, and the website displaying pay-per-click links that were related to tires, lead the Panel to the conclusion that the Complainant has made out an undisputed prima facie case so that the conditions set out in paragraph 4(a)(ii) of the Policy have been met by the Complainant. C. Registered and Used in Bad Faith As stated in many decisions rendered under the Policy (e.g., Robert Ellenbogen v. Mike Pearson,WIPO Case No. D2000-0001), both conditions, registration and use in bad faith, must be demonstrated; consequently, the Complainant must show that: - the disputed domain name was registered by the Respondent in bad faith, and (a) It is well-settled case law that the practice of typosquatting may in itself be evidence of bad faith registration of a domain name (see, e.g., Longs Drug Stores California, Inc. v. Shep Dog,WIPO Case No. D2004-1069; Wal-Mart Stores, Inc. v. Longo,WIPO Case No. D2014-0816). UDRP panels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos) to a famous or widely-known trademark by an unaffiliated entity (as it is in the present case) can by itself create a presumption of bad faith (see section 3.1.4 of the WIPO Overview 3.0). (b) Based on the evidence put forward by the Complainant especially in Annex 1 to the Complaint, the Respondent has also used the disputed domain name in bad faith: The disputed domain name randomly redirected towards various different webpages, including the malicious website that attempted to install malware, and the website displaying pay-per-click links that were related to tires. Moreover, an email server has been configured on the disputed domain name The evidence and documents produced and put forward by the Complainant together with the fact that the Respondent has failed to present any evidence of any good faith registration and use with regard to the disputed domain name leads this Panel to the conclusion, that the disputed domain name was registered and is being used by the Respondent in bad faith 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 Peter Burgstaller
- the disputed domain name is being used by the Respondent in bad faith.
Sole Panelist
Date: August 3, 2021
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