Westmore · UDRP DecisionMerieu.com
The Panel ordered transfer of <merieu.com>. It found the domain confusingly similar to the Complainant’s marks because it omitted only the final letter “x” from the distinctive MERIEUX element. The Respondent lacked rights or legitimate interests and used the domain for a gambling website. Relying on the widely known character of the marks, the confusing diversion for commercial gain, and the absence of any plausible explanation from the defaulting Respondent, the Panel found bad-faith registration and use.
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This decision illustrates a straightforward one-letter-deletion case in which a domain closely approximating the distinctive element of a widely known mark was used for an unrelated commercial gambling website. The outcome turned not on direct competition between the parties, but on the combination of close textual similarity, longstanding trademark rights, lack of authorization, commercial diversion, and the Respondent’s failure to provide any legitimate explanation.
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 Institut Merieux v. Shilirong, www.juming.com Case No. D2016-1215 1. The Parties Complainant is Institut Merieux of Lyon, France, represented by Cabinet Lavoix, France. Respondent is Shilirong, www.juming.com of Jinjiang, Fujian, China. 2. The Domain Name and Registrar The disputed domain name <merieu.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 15, 2016. On June 15, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 16, 2016, the Registrar transmitted by email to the Center its verification response confirming that 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 and 4, the Center formally notified Respondent of the Complaint, and the proceeding commenced on June 17, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 7, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 8, 2016. The Center appointed Richard Hill as the sole panelist in this matter on July 15, 2016. 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 owns the marks INSTITUT MERIEUX and MERIEUX and uses them to market medical products around the world. The marks are widely known, including in China. Complainant’s registration of its mark INSTITUT MERIEUX dates back to 1979. The disputed domain name was registered on January 9, 2016. Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is using the disputed domain name to point to a website that offers services not related to those of Complainant, namely gambling services. 5. Parties’ Contentions A. Complainant Complainant states that it is a well-known company that has been active in the field of medicine and public health for over 100 years. It, and its affiliates, employ close to 10,000 people committed to global public health. It is present in numerous countries and generates sales of over EUR 1.4 billion. It owns various marks incorporating the name MERIEUX, in particular INSTITUT MERIEUX (with rights dating back to 1979), BIOMERIEUX (with rights dating back to 1998), FONDATION MERIEUX (with rights dating back to 2007), and MERIEUX (with rights dating back to 2014). The marks are registered around the world, including in China. The marks are well known in China. According to Complainant, the disputed domain name is confusingly similar to its marks because it is nearly identical, or highly similar to the distinctive element MERIEUX of Complainant’s trademarks. Indeed, the absence of the final letter “x” in the disputed domain name does not detract from the confusing similarity of the disputed domain name with Complainant’s marks. Complainant alleges that Respondent is not a licensee of Complainant, nor is it authorized to use Complainant’s marks. Further, Respondent is making an unfair commercial use of the disputed domain name: the website at the disputed domain name is providing services in relation with online money games, casino games and gambling. Thus, says Complainant, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s trademarks, and the notorious family name MERIEUX, as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service offered on Respondent’s website or location. Such commercial gain constitutes use of the disputed domain name in bad faith. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. Asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by Complainant. See Talk City, Inc. v. Michael Robertson , WIPO Case No. D2000-0009 ; see also Microsoft Corporation v. Freak Films Oy , WIPO Case No. D2003-0109 . A. Identical or Confusingly Similar The disputed domain name differs from the distinctive element of Complainant’s marks only by omitting the letter “x” at the end. This is not sufficient to avoid a finding of confusing similarity in the sense of the Policy. See Wachovia Corporation v. Peter Carrington , WIPO Case No. D2002-0775 ; see also Bang & Olufsen a/s v. Unasi Inc. , WIPO Case No. D2005-0728 . The Panel finds that Complainant has satisfied its burden of proof for this element of the Policy. B. Rights or Legitimate Interests Respondent has not been licensed or otherwise authorized to use Complainant’s mark. There is no evidence in the file to indicate that Respondent is commonly known by the disputed domain name. so the Panel concludes that Respondent is not commonly known by the disputed domain name. See World Natural Bodybuilding Federation, Inc. v. Daniel Jones TheDotCafe , WIPO Case No. D2008-0642 . Respondent is using the disputed domain name to resolve to a web site that offers products and services that are unrelated to those offered by Complainant. In the circumstances, this is not a bona fide use of the disputed domain name. See Harvey Norman Retailing Pty Ltd v. gghome.com Pty Ltd , WIPO Case No. D2000-0945 . Furthermore, legitimate rights or bona fide use do not exist when there is deliberate illegitimate use of another’s rights, or when the domain name is used in bad faith to divert users through confusion, see The PNC Financial Services Group, Inc. and PNC Bank, N.A. v. Azra Khan , WIPO Case No. D2002-0701 ; see also AltaVista Company v. Saeid Yomtobian , WIPO Case No. D2000-0937 . The Panel finds that Complainant has satisfied its burden of proof for this element of the Policy. C. Registered and Used in Bad Faith Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s widely-known mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name. As noted above, the disputed domain name resolves to a website that offers products and services not related to those of Complainant. In the circumstances, this creates a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name. Respondent is using the fame of Complainant’s trademarks to improperly increase traffic to its websites for Respondent’s own commercial gain. This constitutes bad faith registration and use in the sense of the Policy. See Speedo Holdings B.V. v. Tyrone L Glenn-Bus , WIPO Case No. D2003-0440 ; see also the cases cited above. The Panel finds that Complainant has satisfied its burden of proof for this element 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 <merieu.com> be transferred to Complainant. Richard Hill Sole Panelist Date: July 16, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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