Westmore · UDRP DecisionRatemichelin.com
The Panel ordered transfer of <ratemichelin.com>. It found the domain confusingly similar to the MICHELIN trademark because it incorporated the mark in full with the dictionary term “rate”; found no rights or legitimate interests because the Complainant had not authorized the Respondent and no contrary evidence was presented; and found bad-faith registration and use based on the mark’s distinctive nature, the Respondent’s inferred prior knowledge, the domain’s parking-page use, the absence of a Response, and the lack of any conceivable good-faith use in the circumstances.
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The decision illustrates how a domain combining a distinctive trademark with a dictionary term can satisfy all three UDRP elements even when it resolves only to a Registrar parking page. The Panel’s bad-faith analysis depended on the totality of the circumstances rather than evidence of an active infringing website: the mark’s distinctive and longstanding character, the domain’s composition, the Respondent’s default, and the absence of any conceivable good-faith use.
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. Jeff Glazer, Blue Chip Media Pty Limited Case No. D2019-1819 1. The Parties The Complainant is Compagnie Générale des Etablissements Michelin, France, represented by Dreyfus & associés, France. The Respondent is Jeff Glazer, Blue Chip Media Pty Limited, Australia. 2. The Domain Name and Registrar The disputed domain name <ratemichelin.com> is registered with Crazy Domains FZ-LLC (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 30, 2019. On July 30, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 31, 2019, 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 August 2, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 22, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 23, 2019. The Center appointed Knud Wallberg as the sole panelist in this matter on August 26, 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 is a tyre manufacturing company with headquarters in Clermont-Ferrand, France. The Complainant also publishes travel guides, hotel and restaurant guides, maps and road atlases. The Complainant, who is present in more than 170 countries, has been using the MICHELIN trademark throughout the world for more than a century. The Complainant owns numerous trademark registrations for MICHELIN including for example European Union trademark MICHELIN No. 004836359, registered on March 13, 2008, covering goods and services in classes 1, 3, 5, 6, 7, 8, 9, 11, 12, 14, 16, 17, 18, 20, 21, 24, 25, 26, 28, 34, 39, and the Australian trademark MICHELIN No. 258104, registered on May 1, 1972, covering goods in class 12. In addition, the Complainant owns several domain names that reflect its trademarks, including <michelin.com> and <michelin.com.au> The disputed domain name was registered on March 25, 2016. At the time of the filing of the Complaint, the disputed domain dame resolved to a parking page of the Registrar. 5. Parties’ Contentions A. Complainant The Complainant’s assertions may be summarized as follows: (i) Identical or confusingly similar The Complainant states that the disputed domain name is confusingly similar to the Complainant’s MICHELIN trademark, since it contains the mark in its entirety with the addition of the generic term “rate” as prefix. (ii) Rights or legitimate interests The Complainant claims that the Respondent has no rights or legitimate interests in the disputed domain name. The Complainant thus states - that the Respondent is not affiliated with the Complainant nor has it been authorized to seek registration of any domain name incorporating the MICHELIN trademark. - that the Respondent has not made any reasonable and demonstrable preparations to use the disputed domain name in connection with a bona fide offerings goods or services and - that the Respondent fails to show any intention of noncommercial or fair use of the disputed domain name. The disputed domain name is thus used for a parked website with the Registrar. (iii) Registration and use in bad faith According to the Complainant, the disputed domain name was registered and is being used in bad faith. The Complainant is well known throughout the world making it unlikely that the Respondent was unaware of the Complainant’s proprietary rights in the trademark, when the Respondent registered the disputed domain name. The Complainant further argues that the use of the disputed domain name for a parking page of the concerned Registrar constitutes bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings According to paragraph 15(a) of the Rules the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Paragraph 4(a) of the Policy directs that a complainant must prove each of the following: (i) that the disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate. A. Identical or Confusingly Similar The Panel finds that under the Policy, the disputed domain name <ratemichelin.com> is confusingly similar to the Complainant’s registered trademark MICHELIN because it contains the mark in its entirety. The addition of the dictionary term “rate” does not dispel a finding of confusing similarity in the present case. The generic Top-Level Domain (“gTLD”) “.com” is typically disregarded under the confusing similarity test. The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled in relation to the disputed domain name. B. Rights or Legitimate Interests It is clear from the facts of the case that the Complainant has not licensed or otherwise permitted the Respondent to use its trademark and given the circumstances of this case, the Panel finds that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not produced, and there is no evidence of the types of circumstances set out in paragraph 4(c) of the Policy that might give rise to rights or legitimate interests in the disputed domain name on the part of the Respondent in these proceedings. Consequently, the Panel finds that the condition in paragraph 4(a)(ii) of the Policy is also fulfilled. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy provides examples of circumstances which shall be evidence of registration and use in bad faith: (i) circumstances indicating that the Respondent has registered or has acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or (ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or (iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location. Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered and is being used in bad faith. Given the circumstances of the case, including the evidence on record of the use of the Complainant’s trademark MICHELIN, and the distinctive nature of this mark, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant’s mark. Further, the Panel finds that the Respondent could not have been unaware of the fact that it chose a domain name, which could attract Internet users in a manner that is likely to create confusion for such users. The Panel therefore finds that the disputed domain name was registered in bad faith. The disputed domain name is used for what appears to be a standard parking site provided by the Registrar. However, as first stated in Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003 , and repeated in many subsequent decisions under the UDRP: “the concept of a domain name ‘being used in bad faith’ is not limited to positive action; inaction is within the concept. That is to say, it is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.” Noting that the disputed domain name incorporates the Complainant’s distinctive trademark MICELIN together with the dictionary term “rate” and the gTLD “.com”, that no Response has been filed and that there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain name, and considering all the facts and evidence, the Panel finds that the disputed domain name has been registered and used in bad faith, and the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case. 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 <ratemichelin.com> be transferred to the Complainant. Knud Wallberg Sole Panelist Date: September 9, 2019
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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