Westmore · UDRP DecisionMichelin-health.com
The Panel ordered transfer of <michelin-health.com>. It found the domain confusingly similar to the MICHELIN trademark because it incorporated the mark in its entirety with the additional word “health.” The Respondent did not rebut the Complainant’s prima facie showing of no rights or legitimate interests. Bad faith was established from the totality of circumstances, including the notoriety of MICHELIN, the Respondent’s apparent location in China, privacy protection, apparently false or incomplete WhoIs information, failure to answer a cease-and-desist letter or the Complaint, and passive holding of the domain.
The timeline behind michelin-health.com
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The decision illustrates how passive holding can satisfy the bad-faith element when combined with a highly distinctive and well-known mark, a domain that reproduces the mark in full, privacy protection, questionable contact information, and an unexplained failure to respond. It also confirms that adding an ordinary term such as “health” does not avoid confusing similarity when the trademark remains recognizable.
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. WhoisGuard, Inc. WhoisGuard Protected / don’t lookfor Case No. D2018-2228 1. The Parties The Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France. The Respondent is WhoisGuard, Inc. WhoisGuard Protected of Panama / don’t lookfor of Hong Kong, China. 2. The Domain Name and Registrar The disputed domain name <michelin-health.com> is registered with NameCheap, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 2, 2018. On October 2, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 2, 2018, 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 October 3, 2018 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 October 4, 2018. 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 October 5, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 25, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 26, 2018. The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on October 31, 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 A. Complainant The Complainant is a company incorporated in France and is one of the world’s most prominent tire manufacturers. The Complainant is the owner of numerous registrations in jurisdictions around the world for the trade mark MICHELIN (the “Trade Mark”), including international registration number 771031, designating China, registered on June 11, 2001; and several registrations in China, for example, registration number 136402, registered on April 5, 1980. The Complainant is also the owner of the domain name <michelin.com>, registered on December 1, 1993. B. Respondent The identity and location of the Respondent is unknown, although the WhoIs search results for the disputed domain name list an address in the Hong Kong Special Administrative Region of China, and a telephone number with the international area code for China. C. The Disputed Domain Name The disputed domain name was registered on June 12, 2018. D. The Website at the Disputed Domain Name The disputed domain name has not been used. 5. Parties’ Contentions A. Complainant The Complainant contends that the disputed domain name is confusingly similar or identical to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration. The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7 ) together with the word “health”. Where a relevant trade mark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element (see WIPO Overview 3.0 , section 1.8 ). The Panel therefore finds that the disputed domain name is confusingly similar to the Trade Mark. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name: (i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or (ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue. The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption. The Respondent has failed to show that the Respondent has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has not been used. There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name. The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and therefore finds that the requirements of paragraph 4(a)(ii) of the Policy are met. C. Registered and Used in Bad Faith Given the notoriety of the Complainant and of its Trade Mark (including in China, where the Respondent is apparently based), the Respondent’s use of a privacy protection service to conceal the Respondent’s name, the provision of apparently false or incomplete WhoIs contact information, the lack of any explanation from the Respondent, the Respondent’s failure to respond to the Complainant’s pre-Complaint cease and desist letter, and the passive use of the disputed domain name, the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Complainant’s well-known Trade Mark at the time it registered the disputed domain name. For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. 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 <michelin-health.com> be transferred to the Complainant. Sebastian M.W. Hughes Sole Panelist Dated: November 9, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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