WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Societe Nationale De Television France 2 v. Miguel Angel Rosa Gallardo
Case No. DWS2005-0001
1. The Parties
The Complainant is Societe Nationale De Television France 2, Paris, France, represented by Cabinet Dreyfus & Associés, France.
The Respondent is Miguel Angel Rosa Gallardo, Badalona, Spain.
2. The Domain Name and Registrar
The disputed domain name <france2.ws> is registered with Register.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 28, 2005. On July 29, 2005, the Center transmitted by email to Register.com a request for registrar verification in connection with the domain name at issue. On July 29, 2005, Register.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 8, 2005. In accordance with the Rules, Paragraph 5(a), the due date for the Response was August 28, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 31, 2005.
The Center appointed Christophe Imhoos as the Sole Panelist in this matter on September 6, 2005. 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.
Shortly after the transmission of the file to the sole panelist, the Respondent advised that he was not conversant in English and that the Spanish language should be used in these proceedings.
The Center rightly replied that Paragraph 11 of the Rules states that the language of an administrative proceeding commenced under the Policy should be in the language of the registration agreement between the relevant registrant and registrar; that according to information provided by the registrar, the registration agreement for the domain name <france2.ws> was English; and that absent any agreement between the Parties indicating otherwise, the language of this administrative proceeding was deemed to be English.
4. Factual Background
France Televisions Group, the first French broadcasting group, was constituted around three major public station broadcasts: France 2, France 3 and France 5. It diversified its activities around several poles: public station broadcast, thematic stations, movies production, edition and distribution, advertising and multimedia. The Complainant is also a shareholder in several other broadcasting companies. Furthermore, it is implementing a policy for the international development of its stations via cable networks in Europe, satellite links in Africa and on the MMDS networks. In Europe, the Complainant has signed agreements with local collective management companies, setting up the legal framework to permit retransmission of these stations on cable networks, in consideration of payment shared between the different entitled parties.
The Complainant is the owner of numerous trademark rights throughout the world, especially in the field of television broadcasting, movie directing and Internet services, among which are (Annex 4 to the Complaint):
- FRANCE 2 (logo), French trademark N° 92401176, filed on January 14, 1992, renewed and covering products and services in classes 9, 16, 35, 38 and 41;
- 3615 FRANCE 2, French trademark N° 95598823, filed on November 21, 1995, covering products and services in classes 16, 38 and 41;
- France Tv.fr/F2, French trademark N° 95603877, filed on December 28, 1995, covering products and services in classes 16, 38 and 41;
- FRANCE 2 BIS, French trademark N° 99783658, filed on March 23, 1999, covering products and services in classes 9, 16, 35, 38 and 41;
- FRANCE 2 LE JOURNAL INTÉRACTIF, French trademark N° 3000986, filed on January 6, 2000, covering products and services in classes 9, 16, 38 and 41;
- FRANCE 2 WEBDO, French trademark N° 13109983, filed on July 2, 2001, covering products and services in classes 16, 38 and 41;
- FRANCE 2 HEBDO, French trademark N° 13110220; filed on July 3, 2001, covering products and services in classes 16, 38 and 41;
- FRANCE 2, Community trademark N° 000684704, filed on October 30, 2000, covering products and services in classes 9, 16, 38 and 41; and
- FRANCE 2 (new logo), Community trademark N° 002599959, filed on June 26, 2003, covering products and services in classes 9, 16, 25, 28, 35, 38 and 41.
Moreover, the Complainant operates many domain names reflecting its trademarks such as (Annex 5 to the Complaint):
- <france2.fr>, registered on September 6, 1995;
- <france2.tv>, registered on August 9, 2002;
- <france2.org>, registered on October 3, 1998;
- <france2.us>, registered on April 24, 2002;
- <france-2.org>, registered on May 11, 2001;
- <france-2.com>, registered on September 26, 2001;
- <france2.net>, registered on August 17, 2000;
- <france-2.net>, registered on August 9, 2000;
- <france2.biz>, registered on November 19, 2001;
- <france-2.biz>, registered on November 19, 2001;
- <france2.info>, registered on July 31, 2001;
- <france-2.info>, registered on July 31, 2001;
- <france2info.com>, registered on August 24, 2001;
- <france2infos.com>, registered on August 24, 2001;
- <france2sport.com>, registered on August 24, 2001;
- <france2sports.com>, registered on August 24, 2001;
- <france-2.tv>, registered on October 10, 2003;
- <france2.co.il>, registered on May 1, 2002; and
- <france2.ru>, registered on January 15, 2001.
The Complainant, having noticed that the domain name <france2.ws> had been registered by the Respondent (Annex 1 to the Complaint), sent a first warning letter, dated February 25, 2005, by e-mail to the Respondent, asking him to transfer amicably the domain name to the Complainant (Annex 3 to the Complaint). No warning letter by registered post was sent to the Respondent as no physical address could be found. The Respondent did not answer.
5. Parties’ Contentions
A. The Complainant
The Complainant’s arguments are the following:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The domain name <france2.ws> reproduces entirely the previous marks FRANCE 2. Besides, it is well established that the mere adjunction of a ccTLD, such as “.ws”, is not a distinguishing feature and does not change the likelihood of confusion (Telstra Corporation Limited v Nuclear Marshmallows, WIPO Case No. D2000-0003 and Guinness UDV North America, Inc. v. UKJENT, WIPO Case No. D2001-0684).
As a result, the domain name <france2.ws> is identical or at least similar to the numerous trademarks registered by the Complainant.
(ii) The Respondent has no rights or legitimate interests in respect of the domain name.
The Respondent is neither affiliated with the Complainant nor has the Complainant authorized the Respondent to use and register its trademark and service marks, or to seek the registration of any domain name incorporating said mark.
Furthermore, the Respondent has no prior rights or legitimate interest in the domain name. The registration of several FRANCE 2 trademarks and of the various domain names owned by the Complainant preceded the registration of the domain name <france2.ws> by a number of years.
Moreover, the Respondent has never used the term FRANCE 2 in any way previously and is not known by the name FRANCE 2 or any similar term.
The Respondent, at the least, is not making any legitimate non-commercial or fair use of the domain name <france2.ws> as the domain name is not being exploited (Annex 11 to the Complaint) and has simply redirected to an inactive page since its registration in March 24, 2001.
The Respondent is not making any legitimate non-commercial or fair use of the domain name <france2.ws> as a link to an inactive page cannot be considered a bona fide offering of services under Paragraph 4(c)(i) the Policy (Rhoss S.p.A. v. None (CTLGDN-272205), WIPO Case No. D2003-0858). Panels in past UDRP cases have established that keeping a domain name that reproduces a well-known mark inactive constitutes bad faith (Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003).
(iii) The domain name was registered and is being used in bad faith.
Regarding bad faith registration, the Respondent knew or must have known of the trademark FRANCE 2 at the time it registered the domain name.
In addition, the domain name points to an inactive page. It does not direct to a website or any on-line presence that could be a bona fide presence on the Internet. No active website has been developed at <france2.ws>. The absence of any use of the domain name constitutes a bad faith registration (Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003).
In addition, the Respondent did not answer any of the Complainant’s emails. This behavior is an element of the bad faith of the Respondent and it may be that the provided email address was false. This kind of behavior can be considered as an absence of interest of the Respondent in proving the existence of a fair or legitimate interest in the domain name. This conduct confirms the bad faith of the Respondent (Banque Transatlantique S.A. v. DOTSCOPE, WIPO Case No. D2004-1100). It constitutes a registration and a use in bad faith as it could lead average consumers to think that the domain name <france2.ws> is related to the official FRANCE 2 website or at least that it resolves to the official website for FRANCE 2 in Samoa.
B. The Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth three requirements, which have to be met for the Panel to order the transfer of the disputed domain name to the Complainant. Those requirements are that:
(i) the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the Respondent’s domain name has been registered and is being used in bad faith.
The Complainant must prove in the administrative proceeding that each of the aforesaid three elements is present so as to warrant relief, according to Paragraph 4(a) of the Policy.
The Panel has to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable, pursuant to Paragraph 15(a) of the Rules.
In accordance with Paragraph 14(b) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint.
A. Identical or Confusingly Similar
The Complainant has established its rights in the trademark FRANCE 2 with various registrations for that name (Annex 4 to the Complaint).
The Complainant has submitted conclusive evidence that the domain name <france2.ws> is confusingly similar to its trademark FRANCE 2. As rightly submitted by the Complainant (see previous decisions cited above in the Complainant’s contentions; Annex 8 to the Complaint), the “.ws” suffix does not affect that conclusion.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances that, if found by the Panel to be proved based on all of the evidence submitted, shall demonstrate rights to or legitimate interests in the domain name in dispute. Those circumstances are described as follows:
“(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances which could demonstrate, pursuant to Paragraph 4(c) of the Policy, any rights to and/or legitimate interests in the domain name in dispute. The Panel is entitled to draw any such inferences from such default as it considers appropriate pursuant to Paragraph 14(b) of the Rules (see e.g. Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009 and Isabelle Adjani v. Second Orbit Communications, Inc., WIPO Case No. D2000-0867).
As already stated, the Complainant has established that the FRANCE 2 trademark has been widely known for a significant period of time (Annex 4 to the Complaint).
As underlined in its Complaint, and absent evidence to the contrary, the Complainant has not granted any license or otherwise permitted the Respondent to use the trademark or to apply for any domain name incorporating the said trademark. Moreover, the Respondent is not known by the disputed domain name.
Under these circumstances, and absent evidence to the contrary, the Panel is unable to find any evidence that would tend to establish that the Respondent has rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances that evidence registration and use of a domain name in bad faith. Any one of the following is sufficient to support a finding of bad faith:
“(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the 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 your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
As already mentioned, the Respondent did not file any response to the Complaint, failing thereby to invoke any circumstance which could demonstrate his good faith in the registration or use of the domain name in issue.
Nevertheless, the Panel still has the responsibility of determining which of the Complainant’s assertions are established as facts, and whether the conclusions asserted by the Complainant can be drawn from the established facts (see Harvey Norman Retailing Pty Ltd v. Oxford-University, WIPO Case No. D2000-0944).
The Complainant has submitted that the website related to the domain name <france2.ws> is not active (Annex 11 to the Complaint). Various administrative panels have held that passive use of a domain name constitutes bad faith registration and use under certain circumstances (see, e.g., Telstra Corporation Limited. v. Nuclear Marshmallows, WIPO Case No. D2000-0003). The Panel is of the view that the facts in this case warrant a similar finding.
The Panel also follows the Complainant’s submission (Annex 1 to the Complaint) that the fact that a registrant has concealed its identity, whether in whole or in part, is an indication of bad faith (see, e.g., Phamacia & Upjohn AB v. Dario H. Romero, WIPO Case No. D2000-1273).
These elements, taken together, constitute evidence of bad faith within the meaning of Paragraph 4(b) of the Policy.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <france2.ws> be transferred to the Complainant.
Dated: September 20, 2005