Westmore · UDRP DecisionNexans-group.com
The Panel ordered transfer of <nexans-group.com>. It found the Domain Name confusingly similar to the Complainant’s NEXANS trademark, concluded that the Respondent lacked rights or legitimate interests, and held that the Domain Name had been registered and used in bad faith despite resolving only to an error page. The bad-faith finding relied on the coined and highly distinctive nature of NEXANS, the addition of the term “group,” the Respondent’s likely awareness of the Complainant, passive holding, use of a privacy shield, the absence of a response or evidence of contemplated good-faith use, and the implausibility of any good-faith use under the circumstances.
The timeline behind nexans-group.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind nexans-group.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates that an inactive domain can satisfy the UDRP’s bad-faith requirement when the surrounding facts support passive holding. Here, the full reproduction of a coined and highly distinctive mark, the company-related term “group,” the absence of rights or legitimate interests, the privacy shield, the Respondent’s default, and the lack of any plausible good-faith use collectively supported transfer.
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 Nexans v. Data Protected / Cimpress Schweiz GmbH, Cimpress Schweiz GmbH Case No. D2018-2324 1. The Parties The Complainant is Nexans of Courbevoie, France, represented by Cabinet Lhermet & Lefranc-Bozmarov, France. The Respondent is Data Protected of Toronto, Canada / Cimpress Schweiz GmbH, Cimpress Schweiz GmbH of Zurich, Switzerland. 2. The Domain Name and Registrar The disputed domain name <nexans-group.com> (the “Domain Name”) is registered with Tucows Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 12, 2018. On October 12, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 12, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the 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 15, 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 amendment to the Complaint on October 16, 2018. 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 October 19, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 8, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 9, 2018. The Center appointed Mathias Lilleengen as the sole panelist in this matter on November 14, 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 origin of the Complainant dates back to 1897 when the Société Française des Câbles was created. In the last 20 years, the Complainant has become a global leader in advanced cabling and connectivity solutions. The Complainant offers a range of cables and cable systems solutions for the core infrastructure, building and industry business areas. A number of market segments are involved, from energy, transport and telecom networks to shipbuilding, oil and gas, nuclear power, automotive, electronics, aeronautics, material handling and automation. The Complainant employs more than 26,000 people in 34 countries and generated in 2017 EUR 6.4 billion in sales through its worldwide commercial activities. The trademark NEXANS, which is also the Complainant’s company name and trade name, is protected in more than 165 countries all over the world, see e.g. International registrations no. 748932 registered on 8 December 2000 for the word mark NEXANS protected in 66 countries, including many European countries, Russian Federation, and China. The Complainant is the proprietor of 113 domain names containing the word “nexans” registered under generic Top-Level Domain (“gTLDs”) or under country code Top-Level Domains (“ccTLDs”), including <nexansgroup.com> and <nexans.com>. These domain names are actively used as the official company website and they provide extensive information on the Complainant and its activities. On July 6, 2018 the Complainant’s representative contacted the Registrar to obtain information on how to contact the Respondent, but the Registrar refused to comply. The Complainant’s representative has tried to contact the Respondent through its anonymized email address, but the email address did not work. According to the Registrar, the Domain Name registration was created on June 19, 2018. At the time of filing the Complaint, and at the time of drafting the Decision, the Domain Name resolved to an error page. 5. Parties’ Contentions A. Complainant The Complainant provides evidence of trademark registrations. The Complainant argues that the Complainant’s trademarks and trade name are also well known and protected in most countries. The Domain Name incorporates in its entirety the trademark NEXANS, followed by a hyphen and the common word “group”. Pursuant to the Complainant, the addition of the word “group” generates the false impression that the Domain Name is in connection with the activities of the Nexans Group. The Complainant argues that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Complainant asserts that the Respondent is not affiliated with the Complainant or with any of its subsidiaries in any manner, nor is the Respondent an authorized distributor or reseller of the Complainant’s products. To the best of the Complainant’s knowledge, the Respondent has not been granted any license to use the NEXANS trademark nor was the Respondent otherwise authorized by the Complainant to use the NEXANS trademark for any purpose. There is no evidence of the Respondent’s use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services. In fact, it seems that the Domain Name has never been used. The Complainant finds it hard to believe that registration of the well-known trademark NEXANS together with the word “group” is just a mere coincidence. On the contrary, the incorporation of the Complainant’s coined trademark with the descriptive term “group” and the Respondent’s absence of rights or legitimate interests, strongly suggest that the Respondent has registered the Domain Name in bad faith. The Respondent has alleged no good faith basis for use of the Domain Name. Because of the Respondent’s registration, the Complainant is deprived of the use of the Domain Name and must always be concerned about the possibility of a confusing future site. Moreover, due to the WhoIs data protection and the Registrar’s unwillingness, the Complainant has not been able to contact the Respondent. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has established that it has rights in the trademark NEXANS. The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name incorporates in its entirety the Complainant’s trademark. The addition of the word “group” does not avoid a finding of confusing similarity. For the purpose of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the gTLD “.com”, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11 . The Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register the Domain Name containing the Complainant’s trademarks or otherwise make use of its marks. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way. There is no evidence that the Respondent has registered the Domain Name as a trademark or acquired common law or unregistered trademark rights. There is no evidence of the Respondent’s use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services. The Panel finds that the Complainant has made out an unrebutted prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Domain Name incorporates the trademark NEXANS. It seems more likely than not that the Respondent knew of the Complainant and its business when it registered the Domain Name. The incorporation of the Complainant’s coined trademark with the descriptive term “group” and the Respondent’s absence of rights or legitimate interests, indicate bad faith. As a consequence of the Respondent’s registration, the Complainant is deprived of the use of the Domain Name. The Respondent’s non-use of the Domain Name does not prevent a finding of bad faith under the doctrine of passive holding, see WIPO Overview 3.0 section 3.3 . The Complainant’s trademark has a high degree of distinctiveness. The Respondent has also chosen to hide behind a privacy shield. The Respondent has not provided any evidence of actual or contemplated good faith use. Finally, taking into account the Complainant’s trademark and the other circumstances of the case, the Panel finds it implausible that there could be any good faith use to which the Domain Name may be put. For the reasons set out above, the Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of 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 Domain Name <nexans-group.com> be transferred to the Complainant. Mathias Lilleengen Sole Panelist Date: November 19, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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