Westmore · UDRP DecisionMichelinbaby.com
The Panel ordered cancellation of <michelinbaby.com>. It found the domain confusingly similar to the Complainant’s MICHELIN mark because it incorporated the mark with the generic term “baby.” The Respondent lacked rights or legitimate interests, and the domain’s initial pay-per-click use, subsequent passive holding, the mark’s strong reputation, and the absence of any demonstrated good-faith use supported findings of bad-faith registration and use.
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This decision illustrates how the full incorporation of a well-known mark, combined with pay-per-click use and later passive holding, can satisfy all three UDRP elements when the respondent offers no evidence of authorization, legitimate activity, or contemplated good-faith use. It also confirms that default does not remove the complainant’s obligation to prove its case with evidence.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Compagnie Générale des Etablissements Michelin v. Aryo Prakoso Case No. D2014-0350 1. The Parties The Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France. The Respondent is Aryo Prakoso of Jakarta, Indonesia. 2. The Domain Name and Registrar The disputed domain name <michelinbaby.com> is registered with GoDaddy.com, LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 6, 2014. On March 6, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 6, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 10, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 30, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on 31 March, 2014. After the receipt of an informal email communication from the Respondent, the Complainant submitted a request for suspension of the proceedings on April 10, 2014. Consequently, on the same day, the Center suspended the proceedings until May 10, 2014. On May 5, 2014, the Complainant requested the Center to re-instate proceedings, which was confirmed by the Center on the same day. The Center appointed Madeleine De Cock Buning as the sole panelist in this matter on May 19, 2014. 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 Complainant is well known for its products for the automotive industry and gastronomy worldwide. Complainant owns the trademark MICHELIN in connection with the automobile and tire manufacturing industries, as well as in connection with hotel and restaurant guides and maps. MICHELIN trademarks enjoy a worldwide reputation. Complainant owns several MICHELIN trademark registrations. Complainant is inter alia the owner of the following trademark registrations: - Indonesian trademark MICHELIN n° 259984 dated October 24, 1988, duly renewed and covering goods in class 12. - International trademark MICHELIN n° 348615 dated July 24, 1968, duly renewed and covering goods in classes 1, 6, 7, 8, 9, 12, 16, 17 and 20. - Community trademark MICHELIN n° 004836359 dated January 4, 2006 and covering goods and services 1, 3, 5, 6, 7, 8, 9, 11, 12, 14, 16, 17, 18, 20, 21, 24, 25, 26, 28, 34 and 39. Since 1997, the Complainant is present in Indonesia as Michelin Asia and as an observant for the Complainant’s products in the country. The disputed domain name <michelinbaby.com> was registered on August 13, 2013. 5. Parties’ Contentions A. Complainant The Complainant states that the disputed domain name is confusingly similar to its trademarks for MICHELIN. The disputed domain name reproduces Complainant’s trademark that previous UDRP panels have considered to be “well-known” or “famous”. The disputed domain name <michelinbaby.com> reproduces the trademark MICHELIN with the addition of the generic term “baby”. This addition is insufficient to avoid likelihood of confusion. The Respondent has no rights or legitimate interests in respect to the disputed domain name under paragraph 4(a)(ii) of the Policy. The Respondent registered the disputed domain name in bad faith. It is implausible that the Respondent was unaware of the Complainant’s trademark when it registered the disputed domain name. Given the reputation of the MICHELIN trademark, registration in bad faith can be inferred. In addition, the Respondent does not make any use of the disputed domain name, which previously resolved to a pay-per-click website and is currently is inactive. This demonstrates a lack of legitimate interests regarding the disputed domain name and suggests bad faith registration. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules requires that the Panel’s decision be made “on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. It has been a consensus view in the WIPO UDRP Panel Decisions that a respondent's default does not automatically result in a decision in favor of the complainant. Paragraph 4(a) of the Policy requires that a complainant must prove each of the following three elements in order to succeed with the complaint: (i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the respondent and registrant of the domain name 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. While a panel may draw negative inferences from a respondent's default, paragraph 4 of the Policy requires a complainant to support its assertions with actual evidence in order to succeed in a UDRP proceeding. A. Identical or Confusingly Similar Under this paragraph, there are two requirements which the Complainant must establish, firstly that it has rights in a trade or service mark, and secondly that the disputed domain name is identical or confusingly similar to the trademark. The Complainant has proven that it holds a number of valid trademark registrations for the mark MICHELIN in many countries of the world, including the jurisdiction of the Respondent’s domicile. Several UDRP panels have considered the Complainants trademark to be “well-known” or “famous” ( Compagnie Générale des Etablissements Michelin v. Milan Kovac / Privacy—Protect.org, WIPO Case No. D2012-0634 ; Compagnie Générale des Etablissements Michelin v. Vyacheslav Nechaev, WIPO Case No. D2012-0384 ; Compagnie Générale des Etablissements Michelin v. Transure Entreprise Ltd, Host Master / Above.com Domain Privacy, WIPO Case No. D2012-0045 ; Compagnie Générale des Etablissements Michelin v. Above.com Domain Privacy / Transure Enterprise Ltd., Host Master, WIPO Case No. D2013-0357 ; Compagnie Générale des Etablissements Michelin v. PrivacyProtect.org and Kim Bum LLC , WIPO Case No. D2013-0181 ; Compagnie Générale des Etablissements Michelin v. Above.com Domain Privacy and Transure Enterprise Ltd, WIPO Case No. D2013-0226 .) The disputed domain name <michelinbaby.com> reproduces the trademark MICHELIN with the addition of the generic term “baby”. Adding a generic and descriptive term to the Complainant’s trademark is insufficient to avoid likelihood of confusion ( Eurodrive Services and Distribution N.V v. Transure Enterprise Ltd, Host Master and Above.com Domain Privacy, WIPO Case No. D2012-1453 ; Swarovski Aktiengesellschaft v. Luo Li, WIPO Case No. D2012-1604 , Compagnie Générale des Etablissements Michelin v. isman to, WIPO Case No. D2012-0739 ). The Complainant has used the trademark MICHELIN in connection with a wide variety of products and services in Indonesia and around the world. Consequently, the public has learnt to perceive the goods and services offered under this mark as being those of the Complainant. Therefore, the public would reasonably assume that the disputed domain name would be owned by the Complainant or at least assume that it is related to the Complainant. Therefore that Panel finds that the disputed domain name <michelinbaby.com> is confusingly similar to the MICHELIN trademark of the Complainant, and thus paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests The Complainant states not to be affiliated with the Respondent nor has it authorized the Respondent to use or register its trademark. The Respondent has not shown prior rights or legitimate interests in the disputed domain name. The registration of the MICHELIN trademarks preceded the registration of the disputed domain name. Originally the disputed domain name resolved to a parking page with commercial links. This connection to a parking page was deactivated by the Registrar. Presently, the disputed domain name resolves to an inactive page. The Respondent has not made any demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services and did not show any intention of noncommercial or fair use of the disputed domain name ( Groupe Auchan v. Gan Yu, WIPO Case No. D2013-0188 ; LEGO Juris A/S v. DomainPark Ltd, David Smith, Above.com Domain Privacy, Transure Enterprise Ltd, Host master, WIPO Case No. D2013-0188 ). The above reasons, in absence of a rebuttal by the Respondent, convince that the Respondent has no rights or legitimate interests in respect to the disputed domain name under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires the Complainant to prove that the Respondent registered and used the disputed domain name in bad faith. The language of paragraph 4(a)(iii) of the Policy requires that bad faith registration and bad faith use be proven. Registration in bad faith Under paragraph 2 of the Policy, he registrant of a domain name represents and warrants to the registrar that, to his knowledge, the registration of the domain name will not infringe the rights of any third party. It is the registrant’s duty to verify that the registration of the domain name does not infringe the rights of any third party, before registering said domain name ( Compagnie Gervais Danone contre Gueorgui Dimitrov / NETART, WIPO Case No. D2009-0901 ; Carolina Herrera, Ltd. v. Alberto Rincon Garcia, WIPO Case No. D2002-0806 ; Nike, Inc. v. B.B. de Boer, WIPO Case No. D2000-1397 . A trademark search or even a cursory Internet search would have revealed to the Respondent the existence of the Complainant and its trademark ( Lancôme Parfums et Beauté & Cie, L’Oréal v. 10 Selling, WIPO Case No. D2008-0226 ) . MICHELIN is a well-known trademark throughout the world, making it very likely that the Respondent was indeed aware of the Complainant’s proprietary rights in the trademark. The Respondent has not replied to any cease-and-desist letters and reminders by Complainant. From this, in combination with the apparent knowledge of the Complainant’s trademark rights at the time of registration of the disputed domain name, the Panel infers bad faith registration ( Alstom v. Domain Investments LLC, WIPO Case No. D2008-0287 ; NBC Universal Inc. v. Szk.com, WIPO Case No. D2007-0077 ). Use in bad faith The disputed domain name originally resolved to a parking page with commercial links, which has been deactivated by the Registrar after the receipt of the cease-and-desist letter. The Respondent therefore first used the disputed domain name to direct Internet users to a webpage displaying pay-per-clicks links, which are likely to generate revenues. Bad faith can be inferred from such use of the disputed domain name to divert Internet users and to direct them to a webpage providing click through revenues to the Respondent. The Respondent can thus take undue advantage of the Complainant’s well-known trademark to generate profits ( F Hoffmann-La Roche AG v. Anna Valdieri, WIPO Case No. D2007-0956 , L’Oréal SA v. LV Kefeng, WIPO Case No. D2009-1231 and Alstom v. FM Laughna, WIPO Case No. D2007-1736 ). After intervention of the Registrar confirmed by email of December 11, 2013, the connection to the website, was deleted and the disputed domain name <michelinbaby.com> is currently inactive. Such passive holding does not preclude a finding of bad faith ( Cleveland Browns Football Company LLC v. Andrea Denise Dinoia, WIPO Case No. D2011-0421 ). Under the circumstances of this case the Respondent’s current passive holding of the disputed domain name satisfies the requirement of paragraph 4(a)(iii) that the disputed domain name is being used in bad faith by the Respondent. The fact that the Complainant’s trademark MICHELIN has a strong reputation and is widely known and that the Respondent has provided no evidence of any actual or contemplated good faith use of the disputed domain name further contributes to this. Therefore, the Panel concludes that the Respondent both registered and used the disputed domain name in bad faith in accordance with 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 <michelinbaby.com> be cancelled, as requested by the Complainant. Madeleine De Cock Buning Sole Panelist Date: June 2, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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