Westmore · UDRP DecisionMichelincook.com
The Panel ordered transfer of <michelincook.com>. It found the domain confusingly similar to the MICHELIN marks because it incorporated MICHELIN in full and the addition of “cook” did not avoid confusing similarity. The Complainant established a prima facie case that the Respondent lacked rights or legitimate interests, which the defaulting Respondent did not rebut. Bad faith was found from the universally known MICHELIN brand, the connection between “cook” and the Complainant’s restaurant guides, the Respondent’s inferred knowledge, and passive holding without evidence of contemplated good-faith use.
The timeline behind michelincook.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
The decision illustrates how a dictionary term can strengthen the inference of targeting when it corresponds to a well-known activity of the trademark owner. Although the domain was inactive, the Panel considered the reputation of MICHELIN, the restaurant-related meaning of “cook,” the absence of a legitimate explanation, and the lack of contemplated good-faith use together under the passive-holding doctrine.
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. Orlando Antoine Case No. D2018-1490 1. The Parties The Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France. The Respondent is Orlando Antoine of London, United Kingdom of Great Britain and North Ireland (“United Kingdom”). 2. The Domain Name and Registrar The disputed domain name <michelincook.com> (“Disputed Domain Name”) 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 July 4, 2018. On July 4, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On July 5, 2018, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 10, 2018. In accordance with the Rules, paragraph 5, the due date for Response was July 30, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 2, 2018. The Center appointed Sir Ian Barker as the sole panelist in this matter on August 17, 2018. 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 is a French corporation which manufactures all manner of tyres for every type of vehicle including aircraft, automobiles, cycles/motorcycles, earthmovers, farm equipment and trucks. Its business is world-wide with a presence in 170 countries. It has 11,700 employees and 68 production facilities in 17 countries which together produced 187 million tyres in 2016. The Complainant has conducted business in the United Kingdom (where the Respondent is based) since 1905 and in that country is involved in many activities as well as its tyre business. Its brand has a reputation as a leading French company doing business in the United Kingdom. One of the best-known of the Complainant’s activities is the publication – from Watford, England – of the “Michelin Guide” which is a restaurant guide which reviews and grades restaurants. A recent edition highlighted 2,067 restaurants and 1,155 hotels and guesthouses in the United Kingdom. The Complainant is the owner of the following trademarks. - European Trademark MICHELIN No. 009914731, filed on April 21, 2011 and registered on September 27, 2011, covering goods and services in classes 9, 35, 37, 38, 39, 41, 42 and 43. - International trademark MICHELIN No. 348615, registered on July 24, 1968 (duly renewed), covering goods in classes 1, 6, 7, 8, 9, 12, 16 17 and 20. - International registration MICHELIN No. 816915 filed on August 27, 2003 (duly renewed), designating among other United Kingdom and covering services in classes 35, 37, 39 and 42. - United Kingdom trademark MICHELIN No. UK00001286122, registered on August 16, 1991 (duly renewed), covering goods and services in classes 35, 37, 41 and 42. The trademark is used to market the Complainant’s goods and services on a worldwide basis. The Complainant also reflects its trademarks in several domain names such as <michelin.com> registered on December 1, 1993. The Disputed Domain Name resolves to a website which is under construction displaying a “coming soon” notice. On May 7, 2018, the Complainant sent a “cease and desist” letter to the Respondent requesting that the Disputed Domain Name be transferred to the Complainant. After reminders, the Respondent replied on May 29, 2018 declining to transfer the Disputed Domain Name free-of-charge inasmuch as the Disputed Domain Name was not currently in use. 5. Parties’ Contentions A. Complainant The Disputed Domain Name is confusingly similar to the Complainant’s registered trademarks. The trademark features in its entirety. The generic word “cook” does nothing to reduce the confusion. Rather it exacerbates it since the word may refer to the numerous restaurants that have been reviewed in the Complainant’s restaurant guide. See WIPO Case No. D2002-0625 , ACCOR, Societe Anomyne a Directoire et Conseil de surveillance v Tigertail Partners , WIPO Case No. D2002-0625 where it was said: “confusion is only heightened when the generic word added by the Respondent is descriptive of the Complainant’s goods and services marketed in relation to the trademark”. The Respondent was given no rights by the Complainant to reflect its trademarks in the Disputed Domain Name. None of the situations envisaged by paragraph 4(c) of the Policy apply to the Respondent. The Respondent registered and is using the Disputed Domain Name in bad faith. It is implausible that the Respondent was unaware of the Complainant, its trademark and activities when he registered the Disputed Domain Name. The Complainant is well-known worldwide and especially in the United Kingdom. Several WIPO panels have acknowledged the Complainant’s universal reputation which transcends national borders. The Respondent refused to transfer the Disputed Domain Name free-of-charge without giving any reason as to why he had registered the Disputed Domain Name but informed the Complainant that the Disputed Domain Name was not currently in use. The Respondent’s passive holding of the Disputed Domain Name in the circumstances of this case is evidence of bad faith use. The principles of Telstra Corporation Limited v. Nuclear Marshmellows , WIPO Case No. D2000-0003 are apposite. The Respondent is trying to benefit from the fame of the Complainant’s name and is seeking to prevent the Complainant from using its trademark in the Disputed Domain Name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Disputed Domain Name is confusingly similar to the Complainant’s registered trademarks. The Disputed Domain Name incorporates the whole of the trademark. The addition of the dictionary word “cook” does not prevent a finding of confusing similarity. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition , at section 1.8 : “Where the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The nature of such additional term(s) may however bear on assessment of the second and third elements”. Other UDRP WIPO panels have considered the Complainant’s trademark to be confusingly similar to domain names that have incorporated it. See but one example, Compagnie Generale des Etablissements Michelin v Privacy Protection Service INC d/b/a Privacy Protect.org/DomIN Admin, Private Registrations Aktien Gesellschaft , WIPO Case No. D2017-0423 where the disputed domain name was <michelintires.com>. Paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests The Complainant gave the Respondent no authority of any sort to reflect its trademarks in a domain name. Paragraph 4(c) of the Policy could have applied to the Respondent with respect to the Disputed Domain Name, had one of its three provisions been demonstrated in this case. However, the Respondent has chosen not to invoke paragraph 4(c), and the Complainant has met its burden. The Complainant’s claim that it gave the Respondent no authority is not challenged by the Respondent. Moreover, the Panel finds that the composition of the Disputed Domain Name effectively impersonates or suggests sponsorship or endorsement by the trademark owner. See WIPO Overview 3.0 at section 2.5.1 . The Panel finds that the Complainant has established a prima facie case and the Respondent has failed to produce any evidence to establish rights or legitimate interests in the Disputed Domain Name. Therefore, paragraph 4(a)(ii) of the Policy is satisfied. C. Registered and Used in Bad Faith This is a classic case of bad faith registration and subsequent use of a universally-known brand in a domain name which clearly seeks to benefit off the back of the longstanding reputation of the trademark owner. The Panel agrees with the submissions of the Complainant recorded above on this aspect of the case. It defies belief that the Respondent did not know of the Complainant and its various activities, including its restaurant guides at the time of registration. In this respect, the Panel notes that the Disputed Domain Name includes the dictionary word “cook” while the Complainant publishes a well-known guide which assesses and rates numerous restaurants and other eating establishments. The oft-quoted Nuclear Marshmellows decision, issued in the very early days of domain dispute jurisprudence, indicated that passive holding of a disputed domain name can be evidence of bad faith use when, inter alia , the complainant’s trademark had a strong reputation and the respondent had provided no evidence of any actual or contemplated good faith use of the disputed domain name. See also WIPO Overview 3.0 at section 3.3 . The clear inference is that the Respondent wishes to attract Internet users to a website by using the Complainant’s trademarked name accompanied by a dictionary word which might make those users think that the website when completed, might have some connection with the Complainant’s famous restaurant guide; see Policy: paragraph 4(b)(iii). As previously noted the Disputed Domain Name effectively impersonates or suggests sponsorship or endorsement by the Complainant. Paragraph 4(a)(iii) is satisfied. 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 <michelincook.com> be transferred to the Complainant. Sir Ian Barker Sole Panelist Date: August 24, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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