Westmore · UDRP DecisionVivendi-italia.com
The Panel ordered transfer of <vivendi-italia.com>. It found the domain confusingly similar to the VIVENDI trademark, that the Respondent lacked rights or legitimate interests, and that registration and use were in bad faith. The domain reproduced VIVENDI with a hyphen and the geographical term “italia” and redirected to pornographic content capable of tarnishing the Complainant’s trademark.
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The case illustrates a straightforward transfer involving a domain that incorporated an established trademark together with a geographical term and redirected to pornographic content. The Panel treated the geographical addition as insufficient to avoid confusing similarity and relied on the pornographic use and its tarnishing capacity, combined with confusing similarity, to establish bad faith.
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 VIVENDI v. Guseva Svetlana Case No. D2018-2631 1. The Parties The Complainant is VIVENDI of Paris, France, represented by Nameshield, France. The Respondent is Guseva Svetlana of Saint Petersburg, Russian Federation. 2. The Domain Name and Registrar The disputed domain name <vivendi-italia.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 November 16, 2018. On November 16, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 19, 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 November 29, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 19, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 20, 2018. The Center appointed Tobias Zuberbühler as the sole panelist in this matter on January 2, 2019. 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 VIVENDI is a French multinational mass media conglomerate headquartered in Paris. The Complainant owns multiple trademark registrations incorporating its VIVENDI trademark, including the International Registration No. 687855 registered on February 23, 1998. The Respondent is an individual living in the Russian Federation. The disputed domain name was registered on November 15, 2018 and redirects to a website containing pornographic content. 5. Parties’ Contentions A. Complainant The Complainant alleges that it has satisfied all elements of the Policy, paragraph 4. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has shown that it has rights in the VIVENDI trademark, which is reproduced in its entirety in the disputed domain name. The disputed domain name differs from the Complainant’s VIVENDI trademark only by a hyphen and the geographical term “italia”. It is the consensus view of UDRP panels that the addition of such descriptive terms does not prevent a finding of confusing similarity under the first element of the Policy (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7 ). Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark. Therefore, the Complainant has fulfilled the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name. The Complainant contends the Respondent is not commonly known by the disputed domain name, affiliated with Complainant, authorized to use the disputed domain name by the Complainant, nor making a bona fide use of the disputed domain name. Based on the Complainant’s credible contentions, the Panel finds that the Complainant, having made out a prima facie case which remains unrebutted by the Respondent, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Under the circumstances of this case, it can be inferred that the Respondent was aware of the Complainant’s trademark when registering the disputed domain name. The disputed domain name resolves to a website containing pornographic content. Numerous panels deciding cases under the Policy have held that pornographic content on a respondent’s website is in itself sufficient to support a finding of bad faith, irrespective of the respondent’s motivation (see, e.g. , CHRISTIAN DIOR COUTURE v. Paul Farley , WIPO Case No. D2008-0008 , and further cases cited there). In addition, the linking of the disputed domain name with a pornographic website might result in the tarnishing of the Complainant’s well-known trademark. For completeness, the Panel notes that it is not necessary for the Respondent’s conduct to fall precisely within any of the examples of bad faith registration and use which are set out at paragraph 4(b) of the Policy. These are only examples, and do not limit the circumstances which might constitute bad faith registration and use. In this case, the confusing similarity between the disputed domain name and the Complainant’s trademark, and the pornographic nature of the website, with its “tarnishing” capacity, are in combination sufficient for the Panel to conclude that the disputed domain name was registered, and has been used, in bad faith. Accordingly, the Complainant has also fulfilled 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 <vivendi-italia.com> be transferred to the Complainant. Tobias Zuberbühler Sole Panelist Date: January 14, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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