WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Peclers Paris v. PECLERS.COM c/o Whois Identity Shield / Société Peclers Paris Domain Administrator
Case No. D2007-0630
1. The Parties
The Complainant is Société Peclers Paris, Paris, France, represented by Société Paulhan et Associés, France.
The Respondents are PECLERS.COM c/o Whois Identity Shield, Vancouver, British Columbia, Canada; and Société Peclers Paris Domain Administrator, Paris, France.
2. The Domain Name and Registrar
The disputed domain name <peclers.com> is registered with Nameview Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 25, 2007, by email, hardcopy of which was received the following day. On April 27, 2007, the Center transmitted by email to Nameview Inc. a request for registrar verification in connection with the domain name at issue. On May 8, 2007, Nameview Inc. transmitted by email to the Center its verification response advising that the Respondent was not the current registrant providing instead the name and contact details of the Complainant. The latter then advised that it was not in full control of the domain name at issue. Moreover the Complaint had been submitted in French whilst the language of the registration agreement was in English. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on June 26, 2007. The Center verified that the Complaint together with the amendment to 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 June 27, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 17, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 18, 2007.
The Center appointed Christophe Imhoos as the sole panelist in this matter on July 26, 2007. 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 the owner of the mark PECLERS registered in several countries among them (Annexes 5 to 10 to the Complaint):
- since November 17, 1993 in Canada for catalogues, books of tendencies presenting creative ideas as regards fashion, colors, fabrics, textiles in loan-with-carrying and decoration as well as the services of publicity and management consultant and direction of the businesses;
- since July 21, 1987 in France in the classes of products No. 16 (products of printing works), 20 (furniture), 21 (cooking utensils), 24 (fabrics), (clothes, shoes, hats), 26 (laces, embroideries, ribbons, laces), 35 (advertising) and 42 (search and development for new products of interior decoration).
5. Parties’ Contentions
The Complainant’s main arguments are the following.
(i) The domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
The domain name <peclers.com> uses completely and exclusively the registered mark. The banner page of the “www.peclers.com” website presents topics in the form of headings which redirect to commercial sites in the fields where the Complainant is carrying out its own activity (tendencies, fashion, loan-with-carrying, fabrics, colors…) (Annexes 11 and 12 to the Complaint).
(ii) The Respondent has no rights or legitimate interests in respect of the domain name.
The website “www.peclers.com” is a “farming site” which redirects towards various bonds to ensure the corresponding site a good position in search engines. Thus, the Respondent, who is unknown, uses the mark PECLERS registered by PECLERS PARIS Company in order to support trade partners without having any activity on its own.
(iii) The domain name was registered and is being used in bad faith.
The Respondent's behavior is likely to lead the owner of the trademark to offer the repurchase of the registration of the domain name which is infringing its trademark.
As far as the Respondent did the same with the domain name <fondationcartier.com>, it could be considered as cyber squatting (Annexes 13 and 14 to the Complaint).
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 Administrative 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 said 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 PECLERS (Annexes 5 to 10 to the Complaint).
Moreover, the Complainant’s trademark PECLERS is obviously identical to the domain name <peclers.com>.
For the above reasons, the Panel finds that the disputed domain is identical or confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances, if found by the Panel to be proved based on its evaluation of all 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. This entitles the Panel 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 or Isabelle Adjani .v. Second Orbit Communications, Inc., WIPO Case No. D2000-0867). The Complainant should nevertheless make out a prima facie case that the Respondent lacks rights or legitimate interests (see Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).
The Complainant does not appear to have granted any license or to have otherwise permitted the Respondent to use the Complainant’s trademark or to apply for any domain name incorporating the Complainant’s trademark. Moreover, the Respondent is not known by the domain name in dispute.
Under these circumstances and absent evidence to the contrary, the Panel is unable to find any evidence that would establish that the Respondent has rights or legitimate interests in respect of the disputed domain name.
Furthermore, as pointed out by the Complainant in its Complaint, the domain name in dispute redirects towards various bonds to ensure the corresponding site a good position in search engines, which is not a bona fide offering of goods or services under paragraph 4(c)(i) of the Policy or a non-commercial or fair use under paragraph 4(c)(iii) of the Policy (Société Air France v. Bing G Glu, WIPO Case No. D2006-0834; Apagor Distribution S.A.S. v. Richard J., WIPO Case No. D2006-1567).
For the above reasons, the Panel finds that the Respondent does not have rights or legitimate interest with respect to the 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. Anyone of the following conduct 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 the 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 Respondent's conduct as described by the Complainant and supported by conclusive evidence (see Annexes 11 and 12 to the Complaint), i.e. the use of the mark PECLERS in order to support trade partners without having any activity on its own, has to be considered, in the Panel’s view, as prima facie evidence of bad faith registration and use pursuant to paragraph 4(b)(iv) of the Policy.
In addition, bad faith registration and use is further suggested by the fact that the Respondent has concealed its true identity as domain name holder when hiding behind the Complainant's own identity (see chapter 3 above), strongly indicating a bad faith intention (see e.g. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; see also Flowil International Lighting (Holding) B.V., SLI Sylvania Europe v. Sylvania Lighting International, WIPO Case No. D2006-0687) pursuant to the general 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 <peclers.com> be transferred to the Complainant.
Dated: August 9, 2007