WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Rude Chalets Limited v. Marketing Total S. A.
Case No. D2007-0220
1. The Parties
Complainant is Rude Chalets Limited of Essex, United Kingdom of Great Britain and Northern Ireland, represented by Hillgate Patent Services, United Kingdom of Great Britain and Northern Ireland.
Respondent is Marketing Total S. A., of Charlestown, West Indies, Saint Kitts and Nevis.
2. The Domain Name and Registrar
The disputed domain name <rudechalet.com> is registered with DomainDoorman, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 14, 2007. On February 19, 2007, the Center transmitted by email to DomainDoorman, LLC a request for registrar verification in connection with the domain name at issue. On February 20, 2007, DomainDoorman, LLC transmitted by email to the Center its verification response. 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 Respondent of the Complaint, and the proceedings commenced on February 22, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 14, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on March 15, 2007.
The Center appointed the undersigned, Nicolas Ulmer, as the sole panelist in this matter on March 23, 2007. The Panel finds that it was properly constituted. The panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules.
4. Factual Background
Complainant is a company incorporated in the United Kingdom with a sister company in France, both in the business of letting holiday chalets, particularly in the French ski resort of Morzine. As revealed in Annex D to the Complaint, Complainant is the owner of the United Kingdom trademark registration no. 2392387, filed in May 2005 and registered in December 2005, which includes:
Complainant has been in business since 2002, and has extensively promoted and advertised its products in all manner of media, making use of its marks and business name. Complainant also promotes its services online at <rudechalets.com>, which Complainant first registered in July 2002. The disputed domain name, <rudechalet.com>, was registered on or about October 22, 2006 (Annex A). The disputed domain name leads to a portal page providing links to a wide variety of goods and services. Complainant submits evidence demonstrating that these include, or have included, links to other winter holiday services and chalet rentals (Annex Q).
5. Parties’ Contentions
Complainant alleges that due to its extensive promotion and the registration of its marks, both its registered and common law use of the mark RUDE CHALET and its iterations predate Respondent’s domain name registration. The disputed domain name, Complainant alleges, is deliberately “confusingly similar” to Complainant’s registered marks. Specifically, Complainant alleges, with evidence, that Respondent’s website provides links to competing companies providing similar services in direct competition with Complainant (Annexes J and Q). Complainant maintains that Respondent was aware of Complainant’s rights prior to its deliberate adoption of the disputed <rudechalet.com> domain name, which differs from Complainant’s domain name only in the dropping of one “s” (“chalet” as opposed to “chalets”). Complainant also points out that Respondent appears to have a pattern of registering domain names with slight variations on its marks and the marks of others, as shown in Complainant’s Annex S, which mentions 23 disputes believed by Complainant to involve Respondent, with Complainant alleging that there are likely more.
Respondent filed no answer and therefore did not reply to Complainant’s contentions.
6. Discussion and Findings
The Policy, in its paragraph 4(a), provides that Complainant must prove each of the following:
(i) Respondent’s Domain Name is identical or confusingly similar to a trade or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name has been registered and used in bad faith.
A. Identical or Confusingly Similar
The disputed domain name, while not identical to Complainant’s marks, is clearly sufficiently similar to meet the Complainant’s burden of proof. Here the dropping of one “s” does not change the basic pronunciation or nature of the name included in the disputed domain name, and is clearly confusingly similar to Complainant’s marks and trade name and almost identical to Complainant’s own website.
B. Rights or Legitimate Interests
There is here no evidence of any right or legitimate interest of Respondent in Complainant’s marks such as envisioned by paragraph 4(c) of the Policy, and none can be inferred. On the contrary, all inferences, facts and allegations point to a wrongful use. Complainant’s U.K. trademark registration predates Respondent’s registration of the disputed domain name, and there is significant evidence of Complainant having well publicised its ongoing chalet rental business, and received significant press attention to its business. These factors are sufficient to constitute constructive knowledge of Complainant’s rights in the RUDE CHALET trademark, and it is likely that Respondent knew of Complainant’s prior rights in the name. Based on the case file and in the absence of a Response from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
There is significant proof and indicia that Respondent’s registration and use for profit of the disputed domain name was done in bad faith. In particular, the disputed domain name has been used to direct or divert web users, presumably potential customers, for profit (a pay-per-click scheme), to sites that sell products that compete with Complainant’s products. This genre of activity is specific evidence of bad faith under paragraph 4(b)(iv) of the Policy. Respondent’s “typo squatting”, noted above, is further indicia of bad faith in registration, as it appears that the disputed domain name was deliberately registered with knowledge of Complainant’s prior rights, and as a confusing variation on the “Rude Chalet” name. The apparent pattern of behaviour in registering websites with variations of other confusingly similar names is further such indicia. The Panel finds that Respondent’s registration and use of the disputed domain name is in bad faith.
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 <rudechalet.com> be transferred to Complainant.
Dated: April 6, 2007