The Complainant is Compagnie Générale des Etablissements Michelin, France, represented by Dreyfus & associés, France.
The Respondent is Registration Private, Domains By Proxy, LLC, United States of America (“United States” or “U.S.”) / Carolina Rodrigues, Fundacion Comercio Electronico, Panama. 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 7, 2021. On July 7, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 8, 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 July 9, 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 July 13, 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 July 16, 2021. In accordance with the Rules, paragraph 5, the due date for Response was August 5, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 6, 2021. The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on August 16, 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 produces the world famous MICHELIN tires, maps, and guides that help customers in their trips and travels. Since 1889, it has innovated constantly to develop high-technology materials that serve the mobility industry. The Complainant owns numerous MICHELIN trademark registrations around the world, including the following: European Union Trademark MICHELIN, No. 013558366, registered on April 17, 2015 for goods and services in classes 9, 35, 38, 39, 41, and 42; European Union Trademark MICHELIN, No. 004836359, registered on March 13, 2008 and duly renewed, for goods and services in classes 1, 3, 5, 6, 7, 8, 9, 11, 12,14, 16, 17, 18, 20, 21, 24, 25, 26, 28, 34, and 39; International Trademark MICHELIN, Registration No. 771031, registered on June 11, 2001 and duly renewed, for goods and services in classes 5, 7, 8, 9, 10, 11, 12, 16, 17, 18, 20, 21, 24, 25, 39, and 42; United States Trademark MICHELIN (figurative), Registration No. 3684424, registered on September 15, 2009 and duly renewed, for goods and services in classes 3, 5, 7, 8, 9, 11,12, 16, 17, 20,21, 24, 25, 27, and 28. To promote its services, the Complainant uses, among others, the domain names The disputed domain name On April 27, 2021, the Complainant sent a cease and desist letter to the Respondent via the proxy service, asserting its trademark rights and requesting the Respondent to discontinue the use of the disputed domain name and to transfer it to the Complainant. Despite several reminders, the cease and desist letter remained unanswered. 5. Parties’ Contentions A. Complainant The Complainant claims that the disputed domain name is confusingly similar with the trademark MICHELIN, in which the Complainant has rights; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and, that the disputed domain name was registered and is used in bad faith. More specifically, the Respondent is neither affiliated with the Complainant in any way nor has it been authorized to use and register its trademark, or to seek registration of any domain name incorporating 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. The Respondent is not commonly known by the disputed domain name or the name “michelin”. The disputed domain name randomly redirects towards fraudulent pages and among others towards a website which displays commercial links related to the Complainant’s field of activity, including websites of the Complainant’s competitors. Finally, the Complainant requests the Panel to order the transfer of the disputed domain name to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name, the Complainant must prove each of the following, namely that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name was registered and is being used in bad faith. A. Identical or Confusingly Similar As set forth in section 1.7 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) the standing test for confusing similarity involves a reasoned but relatively straightforward comparison between the trademark and the disputed domain name to determine whether the disputed domain name is confusingly similar with the trademark. The test involves a side-by-side comparison of the disputed domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name. The Panel considers that the disputed domain name is confusingly similar with the Complainant’s MICHELIN trademark. The disputed domain name incorporates the Complainant’s trademark MICHELIN with the letter “e” having been deleted. Such practice is commonly referred to a “typosquatting”, and here the trademark MICHELIN remains recognizable in the disputed domain name. The addition of the terms “life” and “slle” separated from “michlin” by a hyphen (seem to evoke the term “lifestyle”) and do not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark. The “.com” generic Top-Level Domain (“gTLD”) is viewed as a standard registration requirement and is generally disregarded under the first element confusing similarity test, as set forth in section 1.11 of WIPO Overview 3.0. Accordingly, the Panel finds that the disputed domain name is confusingly similar with the MICHELIN trademark in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy are fulfilled. B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in a domain name by demonstrating any of the following: (i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or (iii) the respondent 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. Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a domain name, it is well established, as it is put in section 2.1 of WIPO Overview 3.0, that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. The disputed domain name directs to a parking website offering competing pay-per-click links, which does not constitute evidence of demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services and, therefore, cannot establish rights or legitimate interests pursuant to paragraph 4(c)(i) of the Policy. As sustained by the Complainant, there is no evidence in the present case that the Respondent has been commonly known by the disputed domain name, enabling it to establish rights or legitimate interests therein. The name of the Respondent does not resemble the disputed domain name in any manner. Furthermore, there is no evidence in the file to prove any of the circumstances mentioned in paragraph 4(c) of the Policy, nor any other element to prove that the Respondent has legitimate interests or that it has established rights in the disputed domain name. Likewise, and as further discussed under section 6.C of this decision, it does not seem that the Respondent is making any legitimate noncommercial or fair use of the disputed domain name – which is confusingly similar with the Complainant’s trademark MICHELIN – but rather that it intends to use the disputed domain name for the purpose of deriving unfair monitory advantage by confusing Internet users and leading them to believe that the site to which the disputed domain name relates is a site associated with the Complainant. As established in section 2.5 of WIPO Overview 3.0: “Fundamentally, a respondent’s use of a domain name will not be considered ‘fair’ if it falsely suggests affiliation with the trademark owner; the correlation between a domain name and the complainant’s mark is often central to this inquiry”. As indicated in paragraph 6.A above, the disputed domain name is confusingly similar with the Complainant’s trademark MICHELIN and the Respondent is not using the disputed domain name in any way that may be considered fair use. The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the disputed domain name (Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003). The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name and that the requirements of paragraph 4(a)(ii) of the Policy have been fulfilled. C. Registered and Used in Bad Faith The Panel is satisfied that the Respondent must have been aware of the Complainant’s trademark MICHELIN mentioned in paragraph 4 above (Factual Background) when it registered the disputed domain name on March 22, 2021. The Complainant has submitted evidence to support its claim that the trademarks mentioned in paragraph 4 above are widely known and were registered and used many years before the Respondent registered the disputed domain name. Likewise, the Respondent registered the disputed domain name many years after the Complainant registered the domain names The Respondent when registering the disputed domain name on March 22, 2021, has targeted the Complainant’s famous trademark MICHELIN by deleting the letter “e” and adding non- distinctive elements with the intention to confuse Internet users and capitalize on the fame of the Complainant’s name and trademark for its own monetary benefit. The fact that there is a clear absence of rights or legitimate interests coupled with no credible explanation for the Respondent’s choice of the disputed domain name is also a significant factor to consider that the disputed domain name was registered in bad faith (as stated in section 3.2.1 of WIPO Overview 3.0). The Respondent’s failure to respond to the Complainant´s cease and desist letter sent on April 27, 2021 also supports an inference of bad faith in these circumstances. The Panel finds that the Respondent has registered and uses the disputed domain intentionally to attempt to attract for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s famous and widely used MICHELIN trademark as to the source, sponsorship, affiliation, or endorsement. This amounts to bad faith under paragraph 4(b)(iv) 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 Miguel B. O'Farrell
Sole Panelist
Date: August 26, 2021
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