The Complainant is Compagnie Générale Des Etablissements Michelin, France, represented by Tmark Conseils, France.
The Respondent is Domain Administrator, See PrivacyGuardian.org, United States of America / Zhang Zhangqian, China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 13, 2021. On September 14, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 September 20, 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 September 21, 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 September 23, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 13, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 18, 2021.
On October 18, 2021, the Center informed the Parties that due to an apparent issue with the notification of the Complaint, the Center’s Written Notice was not sent to the Respondent, and consequently proceeded to send the Written Notice to these addresses via courier, granting the Respondent an extraordinary 10-day period through October 28, 2021, in which to indicate whether it wished to participate in this proceeding.
On October 18 and 22, 2021, the Respondent stated by emails to the Center that the registrant of the disputed domain name was a third party. The Center notified the Commencement of Panel Appointment Process on October 28, 2021.
The Center appointed Assen Alexiev as the sole panelist in this matter on November 9, 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 BackgroundThe Complainant was established in 1899. It designs, manufactures and markets tires for cars, trucks, motorcycles and planes. It is also involved in travel publications (maps, guides, atlases, computerized products) and vehicle racing (Formula One and Motorcycle Grand Prix, Superbike) and rallies. In 1900, the Complainant started to publish the annual MICHELIN Guide, which ranks fine dining establishments by awarding “Michelin Stars” to restaurants and hotels around the world.
The Complainant is the owner of, inter alia, the following trademark registrations for the sign “MICHELIN” (the “MICHELIN trademark”):
− the United States of America trademark MICHELIN with registration No. 1399361, registered on July 1, 1986 for goods in International Classes 16, 25 and 28;
− the International trademark MICHELIN with registration No. 1245891, registered on December 10, 2014 for services in International Classes 35, 36, 39, 40, 41, 42, 44 and 45;
− the European Union trademark MICHELIN with registration No. 013558366, registered on April 17, 2015 for goods and services in International Classes 9, 35, 38, 39, 41 and 42; and
− the Chinese trademark MICHELIN with registration No. 15961294, registered on March 7, 2016 for goods and services in International Classes 9, 35, 38, 39, 41 and 42.
The Complainant is also the owner of the domain name
The disputed domain name was registered on June 4, 2021. According to the evidence included in the Complaint, it resolved to a website related to the Complainant’s activity in the field of gastronomy and restauration which mentioned the MICHELIN trademark. The disputed domain name is currently inactive.
5. Parties’ Contentions A. ComplainantThe Complainant states that the disputed domain name is confusingly similar to their MICHELIN trademark, because it incorporates this trademark and the corporate name of the Complainant. The Complainant notes that the disputed domain name includes also the term “army,” which does not detract from the association with the Complainant and does not dispel the confusing similarity of the disputed domain name to the MICHELIN trademark.
According to the Complainant, the Respondent has no rights or legitimate interests in respect of the disputed domain name, because the Complainant has used the MICHELIN trademark on a worldwide basis for many decades to promote its activities and products, and it has not authorized any third party to identify itself to the public as MICHELIN in a domain name. The Complainant submits that the Respondent registered the disputed domain name with knowledge of the Complainant and to obtain a commercial advantage of its MICHELIN trademark, without rights or legitimate interests in the disputed domain name.
According to the Complainant the purpose of the website at the disputed domain name is to attract consumers through the prestige and reputation attached to the MICHELIN trademark by letting them believe that the Complainant offers services related to the catering sector on a decentralized network using Blockchain technology, and that the Complainant is behind the creation of this platform, which offers its users and members the opportunity to create applications dedicated to the restaurant industry in order to carry out various transactions on a decentralized network (purchase of food products, restaurant reservations, food reviews).
The Complainant contends that the disputed domain name was registered and is being used in bad faith. It notes that the MICHELIN trademark is well-known around the world and particularly in China, where the Respondent is located. Considering the protection and constant use by the Complainant of the MICHELIN trademark worldwide, there is no chance of it having been registered by the Respondent by simple coincidence. Rather, the Respondent was aware of the existence of the Complainant’s prior rights when the disputed domain name was registered, and it selected the disputed domain name to mislead Internet users and create a likelihood of confusion with the Complainant. The Respondent’s knowledge of the Complainant is also evident from the appearance of the famous “Michelin Man” (the official mascot of the Michelin company) and/or of the MICHELIN Star Device on the Respondent’s website.
The Complainant maintains that the use of the disputed domain name by the Respondent aims at misleading and attracting the Internet user to its own competitive website. According to it, the Respondent uses the disputed domain name in connection with a website that impersonates the Complainant and is being used as part of a fraudulent scheme to obtain money from people who believe that they are getting involved in a catering network created by the Complainant. The Complainant maintains that this is aimed to misleadingly divert consumers and to tarnish the Complainant’s MICHELIN trademark and to disrupt its business operations.
B. RespondentThe Respondent has not submitted a formal Response. In its informal communications to the Center, it maintains that the registrant of the disputed domain name is a third party.
6. Discussion and FindingsPursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following to justify the transfer of the disputed domain name:
(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 Respondent has registered and is using the disputed domain name in bad faith.
By the Rules, paragraph 5(c)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name […].”
The Respondent has, however, not submitted a formal Response or disputed the Complainant’s contentions and evidence in this proceeding. The Respondent seems to claim that the owner of the disputed domain name has a different email address and that it is “trying to connect the supporter to delete domain”. In a second email communication, the Respondent said “in my opinion, if MichelinArmy.com is meeting domain dispute, that guy [with reference to the email address the Respondent says belongs to the owner] why not give up? if that guy will have the opportunity to give up the ownership, why not do it?”
The Panel notes that the Respondent is the registrant of the disputed domain name as confirmed by the Registrar, and that no further information about its relationship with the alleged owner or beneficial holder has been provided, if any. In the circumstances of this case, the Panel will consider Zhang Zhangqian as the Respondent, and the Respondent’s registration and use of the disputed domain name (or Respondent’s website) shall be considered to comprise the registration and use of the disputed domain name irrespective of whether such registration and use is being done by either Zhang Zhangqian (in his own name) or for/by the beneficial holder (if any).
A. Identical or Confusingly SimilarThe Complainant has provided evidence that it is the owner of the MICHELIN trademark. In view of this, the Panel accepts that the Complainant has established its rights in this trademark for the purposes of the present proceeding.
The Panel notes that a common practice has emerged under the Policy to disregard in appropriate circumstances the generic Top-Level Domain (“gTLD”) section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). See section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Panel sees no reason not to follow the same approach here, so it will disregard the “.com” gTLD of the disputed domain name.
The disputed domain name incorporates the MICHELIN trademark in its entirety together with the word “army”. The MICHELIN trademark remains easily recognizable in the disputed domain name. As discussed in section 1.8 of the WIPO Overview 3.0, in cases where the relevant trademark is recognizable within the disputed domain name, the addition of other terms would not prevent a finding of confusing similarity under the first element.
In view of the above, the Panel finds that the disputed domain name is confusingly similar to the MICHELIN trademark in which the Complainant has rights.
B. Rights or Legitimate InterestsWhile 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.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name, because the Complainant’s MICHELIN trademark was registered earlier, and the Respondent has not been authorized by the Complainant to register a domain name that incorporates the same trademark. According to the Complainant, the Respondent must have been aware of the Complainant’s trademark when registering the disputed domain name, which is evident from the content of the Respondent’s website which refers to the Complainant and its MICHELIN trademark and other logos. Thus, the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Respondent has not submitted a formal Response. It has not provided any arguments in support of the existence of any rights or legitimate interests in the disputed domain name, and has not denied the allegations of the Complainant or disputed the evidence that it has brought forward.
The disputed domain name incorporates the MICHELIN trademark, which was first registered many years earlier, and the evidence in the case file shows that the website at the disputed domain name purports to offer services related to the catering sector using Blockchain technology, and to offer its users and members the possibility to create applications dedicated to the restaurant industry in order to carry out various transactions on a decentralized network. There is no disclaimer on the website for the lack of relationship between the Parties.
In view of the above, and in the lack of any arguments or evidence to the contrary, the Panel concludes that it is more likely than not that the Respondent has targeted the MICHELIN trademark with the registration of the disputed domain name in an attempt to improperly capitalize on the reputation and goodwill associated with this trademark by attracting Internet users to the disputed domain name. In the Panel’s view, such conduct does not appear as legitimate and does not give rise to rights or legitimate interests of the Respondent in the disputed domain name.
Therefore, the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy lists four illustrative alternative circumstances that shall be evidence of the registration and use of a domain name in bad faith by a respondent, namely:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
The disputed domain name is confusingly similar to the MICHELIN trademark and was registered many years after it. As stated before, the disputed domain name resolves to a website that purports to offer services related to the catering sector using Blockchain technology, and to offer its users and members the possibility to create applications dedicated to the restaurant industry in order to carry out various transactions on a decentralized network. There is however no disclaimer for the lack of relationship between the Parties. This may confuse Internet users that the Respondent’s website and the services and the platform featured on it are originate from or are endorsed by the Complainant.
In view of the above and in the lack of a denial by the Respondent of the arguments and evidence brought forward by the Complainant, the Panel concludes that the Respondent must have been well aware of the goodwill of the Complainant’s well-known MICHELIN trademark when it registered the disputed domain name, and that it is more likely that the Respondent registered and used it in an intentional attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s MICHELIN trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of the services featured on it.
In view of all the above, the Panel finds that the disputed domain name has been registered and is being used in bad faith.
7. DecisionFor 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,
Assen Alexiev
Sole Panelist
Date: November 23, 2021