WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
GIE PUY DU FOU, Association Pour la Mise en Valeur du Château et du Pays du Puy du Fou v. Balata Inc.
Case No. D2006-1233
1. The Parties
The Complainant is GIE PUY DU FOU, and Association Pour la Mise en Valeur du Château et du Pays du Puy du Fou, Les Epesses, France, represented by Catherine Guigou Avocats, France.
The Respondent is Balata Inc., Tel Aviv, Israel.
2. The Domain Name and Registrar
The disputed domain name <lepuydufou.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 25, 2006. On September 27, 2006, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On September 29, 2006, eNom 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 October 3, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 23, 2006. The Respondent was informed that if his response was not received by that date, he would be considered in default. The Center would still appoint a Panel to review the facts of the dispute and to decide the case. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 24, 2006.
The Center appointed Dr. Vinod K. Agarwal as the Sole Panelist in this matter on November 2, 2006. 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
From the Complaint and the various annexure to it, the Panel has found the following facts:
Complainant is the owner of the registered trademark Le Puy du Fou. The said trademark was registered in various classes on March 21, 1988, in France for the services such as “services and advertising activities, all services enabling a person to communicate with another, transmit messages or orally or visually communicate, entertainment shows, hotel and food services and activities, etc”.
Similarly, the Complainant is also the owner of the registered trademark “Puy du Fou”. The said trademark was registered in various classes on October 20, 2004, in France. It is registered for services such as, “services of on-line advertising, on computer network, communication by computer terminals, entertainment, hotels, information on entertainment and education, electronic publication of periodicals on-line, bookings of shows seats, production and organization of live shows”.
“Le Puy du Fou” is a widely known distinctive trademark, designating a theme park renowned worldwide.
Respondent’s Identity and Activities
The Respondent did not reply to the Complainant’s contentions. Hence, the Respondent’s activities are not known.
5. Parties’ Contentions
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are applicable to this dispute.
In relation to element (i), the Complainant contends that amongst consumers worldwide it is known as “Le Puy du Fou”. “Le Puy du Fou” and “Puy du fou” are the registered trademarks of the Complainant registered in various service in France.
Further that, “Le Puy du Fou” is a widely known distinctive trademark, designating a theme park renowned worldwide.
Thus, the domain name <lepuydufou.com> is very much identical or confusingly similar to the name and trademarks of the Complainant.
In relation to element (ii), the Complainant contends that the Respondent (as an individual, business, or other organization) has not been commonly known by the domain name <lepuydufou.com>.
Further, the Respondent is not making a legitimate or fair use of the said domain name for offering goods and services. The Respondent registered the domain name for the sole purpose of selling the same and for creating confusion and misleading the general public and the customers of the Complainant.
The Complainant has relied on the decision in the case of Croatia Airlines d.d. v. Empire Internet Ltd., (WIPO Case No. D2003-0455) wherein the Administrative Panel held that “the Complainant has indeed made a prima facie showing that Respondent does not have rights or legitimate interests in the domain name within the meaning of Paragraph 4(a) of the Policy”. See also Alcan Inc. v. Digicom Technologies Inc. (WIPO Case No. D2003-0388) wherein the Panel held that there was no evidence to suggest that the respondent had ever used, or demonstrated preparations to use, the disputed domain name in connection with a bona fide offering of goods and services. Thus, it is contended that there were no legitimate rights or interests of the respondent in the domain name.
Regarding the element (iii), the Complainant contends that the main object of registering the domain name <lepuydufou.com> by the Respondent is to earn profit by offering it for sale and to mislead the general public and the customers of the Complainant. When using the “search” item in the welcome page of the site, and typing “Le puy du fou”, there is a hyperlink to a web site “www.priceline-europe.com” which provides a list of “Hotels near Puy du Fou Les Express. Thus, the intention is clearly to divert the customers of the Complainant. The Complainant has stated that the use of a domain name that appropriates a well known trademark to promote competing or infringing products cannot be considered a “bona fide offering of goods and services”. See the decisions of Chip Merchant Inc. v. Blue Star Electronics, d/b/a Memory World, WIPO Case No. D2000-0474 and Yamaha Corporation v. Zhoulai, WIPO Case No. D2004-0126 and Le Comite d’organisation des Championnats du Monde de Ski Val d’Isere v. Kenny E Granum, WIPO Case No. D2006-0264.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel as to the principles the Panel is to use in rendering its decision. It says that, “A panelist shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) The domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The present dispute pertains to the domain name <lepuydufou.com>. The name of the Complainant is GIE PUY DU FOU. The names, “puy du fou” as used in the domain name and “GIE PUY DU FOU” the corporate and trading name of the Complainant are almost identical and confusingly similar in appearance and pronouncement. In the disputed domain name “lepuydufou” only “le” has been added. Though the name of the Complainant does not use the word “le”, nevertheless the registered trademark of the Complainant has the word “le” The Complainant has relied on the decision in the case of New York Times Company v. New York Internet Services, (WIPO Case No. D2000-1072) wherein it was held that the domain name “newyorktimes.com” and the newspaper “The New York Times” are identical on their face. Similarly, in Estee Lauder Inc. v. estelauder.com, estelauder.net and Jeff Hanna (Case No. D2000-0869) the Panel compared the respondent’s domain name <estelauder.com> with the complainant’s trademark ESTEE LAUDER and came to the conclusion that the absence of one “e” was the only difference and concluded that the respondent's domain name is “confusingly similar to the Complainant's mark”. Similar conclusions have been arrived at by the Administrative Panels in the cases of Pharmacia & Upjohn AB v. Dario H. Romero, Case No. D2000-1273 (“pharmacia” and “pharmaciae”) and Briefing.com Inc. v. Cost Net Name Manager, WIPO Case No. D2001-0970. Thus, the Panel finds that the domain name is confusingly similar to the registered trademark of the Complainant. Paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate Interests
According to Paragraph 4(c) of the Policy, the Respondent may demonstrate its rights to or legitimate interest in the domain name by proving any of the following circumstances:
(i) before any notice to the Respondent of the dispute, 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; or
(ii) the Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) The Respondent is making a legitimate non-commercial 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 has not filed any response in this case. There is no evidence to suggest that the Respondent has become known by the disputed domain name anywhere in the world. Further, the disputed domain name is not used by the Respondent for the bona fide offering of goods or services. Based on the default and the evidence in the Complaint, the Panel finds that the above circumstances do not exist in this case and that the Respondent has no rights or legitimate interests in the disputed domain name.
See also Pavillion Agency Inc. Cliff Greenhouse and Keith Greenhouse v. Greenhouse Agency Ltd. And Glenn Greenhouse, WIPO Case No. D2000-1221. “Le Puy du Fou” is the name and mark of the Complainant. It is evident that the Respondent can have no legitimate interest in the domain name. Further, in view of the fact that the Complainant has not licensed or otherwise permitted the Respondent to use its name or trademark or to apply for or use the domain name incorporating said name, the Panel finds that the Respondent has no rights or legitimate interests in the domain name. Paragraph 4(a)(ii) of the Policy is satisfied.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration or use of the domain name in bad faith:
(i) Circumstances indicating that the Respondent has registered or 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 documented out-of-pocket costs directly related to the domain name; or
(ii) The Respondent has 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 it has engaged in a pattern of such conduct; or
(iii) The Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) By using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, internet users to its 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 the Respondent’s website or location or of a product or service on its website or location.
The Complainant contends that the domain name was registered or acquired primarily for the purpose of selling the domain name to the owners of the trademarks, the Complainant, or to the competitors of the Complainant, for valuable consideration. In fact, the domain name was offered for sale on another site which contained the following expression “Send an offer to buy lepoudufou.com. What you offer is exactly what you pay. Offer must be at least $ 200 USD”.
This and other information submitted by the Complainant leads to the presumption that the domain name in dispute was registered and used by the Respondent in bad faith. Accordingly the Panel finds that the Respondent registered and used the domain name in bad faith. Paragraph 4(a)(iii) of the Policy is satisfied.
In light of the forgoing findings, namely, that the domain name is confusingly similar to a mark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in respect of the domain name, and that the domain name was registered in bad faith and is being used in bad faith, in accordance with Paragraphs 4(i) of the Policy and Rule 15 of the Rules, the Panel orders that the domain name <lepuydufou.com> be transferred to the Complainant.
Vinod K. Agarwal
Dated: November 14, 2006