Westmore · UDRP DecisionMichelinbeauty.com
The Panel ordered transfer of <michelinbeauty.com>. It found the domain confusingly similar to the MICHELIN mark because it incorporated the mark in full with the term “beauty.” 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 based on the reputation and worldwide presence of MICHELIN, the likelihood of confusion, passive holding of the inactive domain, and the configuration of email servers, which the Panel stated could possibly facilitate phishing.
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The decision illustrates how incorporation of a reputed mark, respondent default, passive holding, and configured email infrastructure can collectively support transfer even where the domain has no active website. It also shows that a panel may proceed in the complaint’s language despite a different registration-agreement language when the respondent does not object and translation would add delay and expense.
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. Keiyu Nishiya Case No. D2021-3810 1. The Parties The Complainant is Compagnie Générale des Etablissements Michelin, France, represented by Dreyfus & associés, France. The Respondent is Keiyu Nishiya, Japan. 2. The Domain Name and Registrar The disputed domain name <michelinbeauty.com> is registered with GMO Internet, Inc. d/b/a Discount-Domain.com and Onamae.com (the “Registrar”). 3. Procedural History The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on November 15, 2021. On November 16, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 17, 2021, 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. On November 17, 2021, the Center transmitted an email communication to the Parties in English and Japanese regarding the language of the proceeding. On November 19, 2021, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding. 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 in English and Japanese of the Complaint, and the proceedings commenced on December 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 30, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 2, 2022. The Center appointed Douglas Clark as the sole panelist in this matter on January 13, 2022. 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, founded in 1889, is a leading tire company in the world. It has its headquarters in Clermont-Ferrand, France and has presence in over 171 countries. The Complainant has 114,000 employees and operates 69 manufacturing facilities in 17 countries, including Japan. The Complainant first launched its Michelin Guide to help motorists plan their trips in the 1920s. In 1926, the Michelin Guide started rating and awarding stars to restaurants annually, giving them one to three stars. It rates over 30,000 establishments in over 30 territories across three continents, so far more than 30 million Michelin Guides have been sold worldwide. The Complainant is the owner of various MICHELIN trademarks in the world, including Japanese trademark MICHELIN No. 970990, registered on July 10, 1972, duly renewed, and covering goods in class 12; Japanese trademark MICHELIN No. 2087086, registered on October 26, 1988, duly renewed, and covering goods in classes 7, 9, 12, 17 and 20; and International trademark MICHELIN No. 1254506, registered on December 10, 2014, covering goods and services in classes 9, 35, 38, 39, 41 and 42, and designating, among others, Japan. The Complainant is also the owner of domain names <michelin.com>, registered on November 30, 1993 and <michelin.jp> registered on March 26, 2001. The Respondent is an individual based in Japan. The disputed domain name was registered on July 7, 2021 and resolves to a page that displays an error screen in Japanese. 5. Parties’ Contentions A. Complainant Identical or Confusingly Similar The Complainant contends that the disputed domain name and the trademark MICHELIN are confusingly similar. The disputed domain name contains MICHELIN in its entirety as the distinctive part of the disputed domain name. The generic term “beauty” does not affect the similarity of the disputed domain name from the registered trademark. No rights or legitimate Interests The Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for MICHELIN. It, therefore, has no rights or legitimate interests in the disputed domain name. There is also no relationship between the Parties and the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. Registered and used in bad faith The Complainant submits that there is no doubt that before registration of the disputed domain name the Respondent knew of the Complainant’s rights in the MICHELIN trademark given its worldwide reputation and given its presence in the world including in Japan. The Respondent acquired the disputed domain name to capitalize on or otherwise take advantage of the Complainant’s trademark rights, and to intentionally attract Internet users to his website by creating a likelihood of confusion with the Complainant’s trademark. The reputation of the Complainant is such that the application for the registration of disputed domain name must have been in bad faith. Further, email servers have been configured on the disputed domain name and thus, there may be a risk that the Respondent is engaged in a phishing scheme in which the use of an email address with the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1 Language of the Proceedings The language of the Registration Agreement is Japanese. The Complainant requests that the language of the proceedings be English on the grounds that (i) the Complainant is a French Company and does not understand Japanese, and (ii) English is the primary language for international relations and it is one of the working languages of the Center. The Respondent did not respond to this request. Paragraph 11(a) of the Rules provides that: “Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.” The Center made a preliminary determination to: 1) accept the Complaint as filed in English; 2) accept a Response in either Japanese or English; 3) appoint a Panel familiar with both languages mentioned above, if available. The final determination of the language of the proceedings lies with this Panel. The Respondent did not respond to the Center’s preliminary determination. This Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade , WIPO Case No. D2008-1191 , that a respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceedings “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint”. As set out below, the Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delays and expense. This factor leads the Panel to determine to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English. 6.2 Substantive Issues A. Identical or Confusingly Similar The disputed domain name is confusingly similar to the Complainant’s trademark. The disputed domain name incorporates the Complainant’s MICHELIN mark in full with a term “beauty”. The disputed domain name is therefore confusingly similar to the Complainant’s registered trademark. The first element of paragraph 4(a) of the Policy is therefore satisfied. B. Rights or Legitimate Interests The Respondent has not responded to the Complaint to assert any rights or legitimate interests. Section 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “ WIPO Overview 3.0 ”) provides: “While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.” The Respondent has no business or any kind of relationships ( i.e . licensor, distributor) with the Complainant. Considering the absence of a response by the Respondent to the Complainant’s contentions and the fact that the Respondent was granted neither a license nor an authorization to make any use of the Complainant’s trademark, the Panel finds the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name. Therefore, the Respondent has failed to rebut the Complainant’s prima facie case. The second element of paragraph 4(a) of the Policy is therefore satisfied. C. Registered and Used in Bad Faith Based on the evidence, the Panel has no hesitation in finding that the disputed domain name <michelinbeauty.com> was registered in bad faith and is being used in bad faith. The Panel finds that the Respondent could not have chosen and registered the disputed domain name in good faith without having been aware of the Complainant especially given its reputation and extensive presence worldwide in the tire industry and with its guidebook to the food and beverage industries. The disputed domain name is clearly being used to attract Internet users to the website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the service of the website in accordance with paragraph 4(b)(iv) of the Policy. The fact that the disputed domain name does not resolve to an active page does not preclude a finding that it has been used in bad faith. It is well established that the lack of use of the disputed domain name does not prevent a finding of bad faith under the doctrine of passive holding. Further, the domain has also been used to configure email servers and thus could possibly be engaged in a phishing scheme. For the above reasons, the third part of the paragraph 4(a) of the Policy is therefore 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 <michelinbeauty.com> be transferred to the Complainant. Douglas Clark Sole Panelist Date: January 28, 2022
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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