The Complainant is Les Pattes Douces SAS, France, represented by Nexen Contentieux, France.
The Respondent is JF Pillot, France. 2. The Domain Name, Registry and Registrar
The Registry of the disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 22, 2020. On September 22, 2020, the Center transmitted by email to the Registry a request for registrar verification in connection with the disputed domain name. On September 29, 2020, the Registry transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the disputed domain name. The Center verified that the Complaint satisfied the formal requirements of the .eu Alternative Dispute Resolution Rules (the “ADR Rules”) and the World Intellectual Property Organization Supplemental Rules for .eu Alternative Dispute Resolution Rules (the “Supplemental Rules”). In accordance with the ADR Rules, Paragraph B2, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 9, 2020. In accordance with the ADR Rules, Paragraph B3, the due date for Response was November 21, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 2, 2020. The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on December 23, 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 ADR Rules, Paragraph B5. 4. Factual Background The Complainant, which is a French company founded in 2018, produces and markets nutritional ingredients and substitutes. The Complainant owns rights in the French NATEOS trademarks no. 4619254 and no. 4619263, both dated January 30, 2020 (together referred to hereinafter as: “the Mark”). The disputed domain name The disputed domain name was initially registered in the name of a proxy service. The identity of the Respondent was disclosed by the Registry in response to the Complainant’s request for disclosure in connection with the disputed domain name. The Complainant has submitted evidence that it sought to contact the Respondent prior to initiating these proceedings. 5. Parties’ Contentions A. Complainant (i) The Complainant submits that the disputed domain name reproduces the Mark, in which the Complainant has rights, and is confusingly similar to the Mark insofar as the disputed domain name, (ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Furthermore, the Complainant contends that it never authorized the Respondent to use the Mark in any manner and that the Respondent has never had any affiliation with the Complainant. (iii) The Complainant submits that the Respondent has registered and, by its passive holding, is using the disputed domain name in bad faith. (iv) The Complainant requests that the disputed domain name be transferred to the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Procedural Aspects: Admissibility of a request to transfer and failure to comply The Panel finds that the Complainant satisfies the general eligibility criteria for registration set out in Paragraph 4(2)(b) of Regulation (EC) No 733/2002, as amended by Regulation (EU) No 2019/517, and thus that, pursuant to sub-paragraph B11(b) of the ADR Rules, the transfer of the disputed domain name is a remedy available to the Complainant. Pursuant to sub-paragraph B11(a) of the ADR Rules, the Panel is empowered to decide a Complaint on the basis of the statements and documents submitted. Under Paragraph B11(d) of the ADR Rules, it is the Complainant’s burden to establish that all three of the required criteria for granting the remedy sought have been met. Under the ADR Rules, sub-paragraph B10(a), a failure by the Respondent to comply with any time period is a ground to accept the claims of the Complainant. As noted above, the Respondent has failed to respond within the time period provided. Under sub-paragraph B10(b) of the ADR Rules, the Panel is empowered to draw from the Respondent’s failure to comply such inferences as it considers appropriate, and under sub-paragraph B7(d) of the ADR Rules, the Panel is empowered to determine in its sole discretion the admissibility, relevance, materiality and weight of the evidence. In this case, the Panel finds that the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant. In particular, by failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in sub-paragraph B11(e) of the ADR Rules or otherwise, from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name. Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent has acted in bad faith. 6.2. Requirements of sub-paragraph B11(d) of the ADR Rules A. Identical or Confusingly Similar to a name in respect of which a right or rights are recognized or established by national law of a Member State and/or European Union law In comparing the Mark with the disputed domain name It is well established that a ccTLD does not generally affect the assessment of a domain name for the purpose of determining identity or confusingly similarity. The Panel finds that the disputed domain name Thus, the Complainant has satisfied the requirement of sub-paragraph B11(d)(1)(i) of the ADR Rules. B. Rights or Legitimate Interests Although a complainant bears the ultimate burden of establishing all three elements of sub-paragraph B11(d)(1) of the ADR Rules, with regard to sub-paragraph B11(d)(1)(ii) of the ADR Rules, this could result in the often impossible task of proving a negative proposition, requiring information that is primarily, if not exclusively, within the knowledge of a respondent. Thus, the Panel’s view is that sub-paragraph B11(d)(1)(ii) of the ADR Rules shifts the burden of production of evidence to the respondent to come forward with evidence of rights or legitimate interests in a domain name, once the complainant has made a prima facie showing, as the Panel finds the Complainant has made in this case, based on the facts and arguments set out above. For similar views by UDRP panels, see Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270, and WIPO Overview 3.0, section 2.1. As previously noted, the Respondent offered no reason for selecting the disputed domain name. There is no evidence that the Respondent is known by the disputed domain name or uses (or has made bona fide preparations to use) the disputed domain name in a business or otherwise. The disputed domain name does not resolve to any active website. No information is provided on what rights or legitimate interests the Respondent may have in the disputed domain name. To counter any notion that the Respondent has such rights or legitimate interests, the Complainant has argued that the Respondent (i) has no affiliation with the Complainant and (ii) received no authorization from the Complainant to register or use the disputed domain name. In the circumstances, the Panel concludes that the Complainant has established the requirement of sub-paragraph B11(d)(1)(ii) of the ADR Rules with respect to the disputed domain name. C. Registered or Used in Bad Faith As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant in registering a domain name confusingly similar to the Mark. In this case, given that the Complainant had rights in the Mark prior to the registration of the disputed domain name, the Respondent could have known of it by a check of public databases. The Panel notes that the disputed domain name is identical to the Complainant’s Mark, which, in the absence of any explanation of the reasons for the registration by the Respondent, does not seem coincidental, and leads the Panel to infer that the disputed domain name was registered probably to take advantage of the Complainant. Prior UDRP panels have held that the passive holding of a domain name does not prevent a finding of bad faith, especially when its good faith use is in no way plausible, considering the specificity of the circumstances (see Audi AG v. Hans Wolf,WIPO Case No. D2001-0148). The Panel finds it is indeed not possible to consider from the circumstances of the case any plausible future active use of the disputed domain name that would not be illegitimate, considering the specificity of the Complainant’s activity and in particular the composition of the disputed domain name. Moreover, it is well established that the mere passive holding of a domain name may in appropriate circumstances be evidence not only of bad faith registration, but also of bad faith use. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; DCI S.A. v. Link Commercial Corporation,WIPO Case No. D2000-1232; Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy’s Antiques,WIPO Case No. D2000-0004; and Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital,WIPO Case No. D2000-1260. Furthermore, prior UDRP panels have also held that deliberate concealment of identity and contact information may in certain circumstances be indicative of bad faith (see TTT Moneycorp Limited v. Diverse Communications,WIPO Case No. D2001-0725, and Schering Corporation v. Name Redacted,WIPO Case No. D2012-0729). In this case, the Respondent has taken active steps to hide its identity and has submitted no evidence of any good faith use of the disputed domain name. The Panel also notes that although using a proxy service to hide the identity of the registrant is not per se conclusive of bad faith registration and use (see Trinity Mirror Plc and MGN Ltd. v. Piranha Holdings,WIPO Case No. D2008-0004), the fact that the Respondent used a proxy service to hide its identity and contact details prevented the Complainant from contacting it. The Panel concludes, notably in the light of the Respondent’s failure to reply to the Complainant’s letter offering to settle the dispute and its subsequently electing to default in this proceeding, that the Respondent’s registration and use of the disputed domain name constitute bad faith, and that the requirement of sub-paragraph B11(d)(1)(iii) of the ADR Rules is also satisfied in this case. 7. Decision For the foregoing reasons, in accordance with Paragraph B11 of the ADR Rules, the Panel orders that the disputed domain name, The Complainant is eligible to request the transfer of the disputed domain name, Louis-Bernard Buchman 1 Noting the similarities between the Uniform Domain Name Dispute Resolution Policy (the “UDRP”) and the ADR rules, the Panel has referred to prior UDRP cases and the WIPO Overview 3.0, where appropriate.
Sole Panelist
Date: January 4, 2021
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