Complainant is Société Anonyme des Eaux Minérales d'Evian (SAEME) of Evian, France, represented by Cabinet Dreyfus & Associés, France.
Respondents are Vivi Bui and Evian Dayspa, of Springfield, United States of America (collectively referred to hereinafter as “Respondent”).
The disputed domain name <evian-dayspa.com> is registered with GoDaddy.com, Inc., and the disputed domain name <eviandayspa.com> is registered with Melbourne IT Ltd (hereinafter “the Domain Names”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 3, 2008. On December 4, 2008, the Center transmitted by email to Melbourne IT Ltd and GoDaddy.com, Inc. a request for registrar verification in connection with the Domain Names. On December 4, 2008 GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent Evian Dayspa is listed as the registrant and providing the contact details. On December 5, 2008 Melbourne IT Ltd transmitted by email to the Center its verification response confirming that the Respondent Vivi Bui is listed as the registrant and providing the contact details. The provided contact details for both Domain Names are essentially identical. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 16, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 5, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on January 6, 2009.
The Center appointed Clive L. Elliott as the sole panelist in this matter on January 21, 2009. 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.
This dispute concerns the domain names <evian-dayspa.com> and <eviandayspa.com> which were registered on November 21, 2007 and on September 30, 2008 respectively. The Domain Names are essentially the same and will be treated below as such. The contact information for both Domain Names being essentially the same, the Panel treats the two named Respondents collectively as one for the purposes of the present proceedings.
Complainant states that it is a company incorporated under French law, is a subsidiary of the French company Groupe Danone, and is the owner of numerous EVIAN trademarks protected throughout the world. Certain registrations contain in combination the words EVIAN and SPA. Details are provided. It also states that it is the owner of several domain names including:
- <evian.com>, registered on May 14, 1997;
- <evian.net>, registered on February 21, 1998;
- <evian.fr>, registered on January 22, 1996;
Complainant asserts that 1,5 billion bottles of Evian mineral water is sold every year worldwide and that the trademark EVIAN is the best selling trademark of mineral water in the world. Complainant maintains that the EVIAN trademark, which also includes a range of beauty and health products, has been used on labeling, packaging and promotional literature for its products and has been prominently displayed in supermarkets and grocery stores around the world.
Complainant asserts that it is also well known for its Spa activity, and owns two hotels, the “Spa Hôtel Royal” and the “Spa Hôtel Ermitage”, where its spas are based, and which are presented on its website “www.evianroyalresort.com”. Complainant also advises that these spas are beauty salons offering massages, skincare treatments, body treatments, manicure, pedicure, exfoliating scrubs and haircare.
Complainant states that once it became aware that the domain name <evian-dayspa.com> was registered on November 21, 2007, it sent a cease-and-desist letter to the Respondent on April 10, 2008. Complainant asserts that Respondent replied to that letter but refused to transfer the domain name arguing that its name was not just Evian but it was Évian Day Spa (where the word Evian had an accent on top of the E).
Complainant asserts that Respondent was aware of Complainant's intellectual property rights when the second domain name <eviandayspa.com> was registered by Respondent on September 30, 2008.
Respondent did not reply in these proceedings to the Complainant's contentions.
Complainant is the owner of various EVIAN and EVIAN plus SPA trademarks (hereinafter “the Trademarks”). Complainant is also the owner of several domain names including its trademark EVIAN.
There can be little real doubt that the Domain Names comprise the trademarks EVIAN and EVIAN SPA and that the Trademarks EVIAN and EVIAN SPA are clearly identifiable in the Domain Names. As a result, the Panel finds that the Domain Names are confusingly similar to the Trademarks.
It is therefore found that Complainant has rights in the Trademarks, that these are comprised in their entirety in the Domain Names, and that the requirements of Paragraph 4(a)(i) of the Policy are met.
Respondent is not apparently affiliated with Complainant in any way and have not been authorized by Complainant to use and register its trademarks or to seek the registration of any domain name incorporating the Trademarks.
The registration of the numerous EVIAN trademarks preceded the registration of the Domain Names. The Domain Names and the alleged E'vian Day Spa name “with an accent on top of the E”, are an obvious and direct reference to the Trademarks and products produced by EVIAN.
It is found that the Domain Names make a direct reference to the EVIAN SPA trademark and notably to the activity of the Complainant's hotels “Spa Hôtel Royal” and the “Spa Hôtel Ermitage”, presented on the website “www.evianroyalresort.com”. Respondent has declined to explain why they registered two domain names comprising or containing EVIAN and SPA.
Accordingly, Complainant's argument that it is difficult to say that the association of the term “spa” with the trademark EVIAN was a pure coincidence, is well made.
It is therefore established that Respondent has no rights or legitimate interests in respect of the Domain Names under Paragraph 4(a)(ii) of the Policy.
Paragraph 4(a)(iii) of the Policy requires that the Respondent has registered and uses the domain name in bad faith.
It is not difficult, in the absence of any evidence to the contrary, to infer that Respondent knew or must have known of Complainant's Trademarks at the time it registered the Domain Names.
EVIAN is a well-known trademark, protected throughout the world and in particular in the United States, the country in which Respondent is established. The trademark EVIAN has been registered in the United States for many years, and before the registration of the Domain Names.
Further, when it comes to the domain name <eviandayspa.com>, Respondent was fully aware of Complainant's claimed rights when it was registered on September 30, 2008, having at that point received the cease and desist letter for the domain name <evian-dayspa.com>.
The first domain name <evian-dayspa.com> directs towards a website which presents a Spa called “Evian Day Spa”. It is asserted that if Internet users select the “Spa Packages” heading, they are redirected towards a page proposing several massages, body treatments and facial treatments whose title reproduce the Complainant's trademark “EVIAN”. It is argued that Respondent uses the well-known association between the trademark EVIAN and Spas to attract Internet users on its websites and that as a result Internet users will wrongly think that the Domain Names were registered by Complainant and it is also the owner of this Spa.
Complainant's argument that Respondent takes advantage of the Complainant's trademarks notoriety and benefit from the reputation of its Spas has merit. It is found that this conduct is likely to be misleading for Internet users who will wrongly believe that the said websites are maintained by Complainant or by a third person who is linked to Complainant.
It is thus established that Respondent both registered and used the Domain Names in bad faith in accordance with Paragraph 4(a)(iii) 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 Names <evian-dayspa.com> and <eviandayspa.com> be transferred to Complainant.
Clive L. Elliott
Dated: February 4, 2009