The Complainant is La Francaise des Jeux, France, represented by Inlex IP Expertise, France.
The Respondent is Malveau Serge, France.
The disputed domain name <francaisedesjeux-sms.com> is registered with eNom.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 17, 2008. On December 18, 2008, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On December 18, 2008, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 23, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 12, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 13, 2009.
The Center appointed Alexandre Nappey 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.
The French Company La Francaise Des Jeux is the French lottery of State which creates, develops and markets lottery and sports-betting games trough France.
The Complainant is the holder of numerous trademarks consisting or including the words Francaise Des Jeux in France and in the European Union.
The Complainant is also the registered owner of domain names including the words Francaise Des Jeux which are pointing to the Complainant's website.
On April 12, 2008, the Respondent registered the disputed domain name <francaisedesjeux-sms.com>.
The disputed domain name points to a waiting page.
A cease and desist letter was sent to the Respondent by registered letter and e-mail on April 21, 2008, to request the transfer of the disputed domain name to the Complainant. It remained unanswered.
The Complainant asserts that the disputed domain name is confusingly similar to its trademarks, domain names and company name.
According to the Complainant, the only difference between the domain name and the Complainant's trademarks consists in the three letters “sms”, that could be considered as a variation of the games offered by the Complainant dedicated to mobile phones.
The Complainant then claims that the Respondent lacks rights or legitimate interests in the disputed domain name, taking into account the well-known character of the Complainant's trademark, a claimed absence of right belonging to the Respondent, a supported absence of bona fide in the use of the disputed domain name, and the absence of any license or authorization by the Complainant.
At last, on the basis of the well-known character it claims, the Complainant grants that the Respondent could not ignore the trademark LA FRANCAISE DES JEUX at the time he registered the disputed domain name, and that the disputed domain name is passively used in bad faith.
The Respondent did not reply to the Complainant's contentions.
Notwithstanding the default of the Respondent, it remains up to the Complainant to make out its case in accordance with paragraph 4(a) of the Policy, and to demonstrate that:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel “shall draw such inferences therefrom as it considers appropriate”.
Having consideration to the Parties' contentions, the Policy, Rules, Supplemental Rules and applicable substantive law, the Panel's findings on each of the above cited elements are the following:
The Panel finds that the Complainant holds trademark rights in the term LA FRANCAISE DES JEUX in France and in the European Union.
The evidence provided with the Complaint shows substantive use of the trademark which may be considered well-known in France.
The disputed domain name incorporates the distinctive part of the trademark, i.e., the words “francaise des jeux” without the article “la” (which stands for “the” in English). The three letters “sms” are added to the trademark with a hyphen to form the disputed domain name.
“Sms” is the English acronym for short message service, which is widely used and well-known to the public. Therefore it is the Panel's opinion that the addition of the word “sms” does not confer distinctiveness to the domain name, but on the contrary leads the public to the opinion that the Respondent is offering services, or at least part of them, for mobile phones.
Consequently the Panel is satisfied that the Complainant has rights in the LA FRANCAISE DES JEUX trademark and finds that the disputed domain name is confusingly similar to the Complainant's trademarks.
The Respondent has no connection or affiliation with the Complainant, which has not licensed or otherwise authorized the Respondent to use or apply for any domain name incorporating the Complainant's trademarks.
The Respondent has not alleged any facts or elements to show rights or legitimate interests in the disputed domain name.
The Respondent does not appear to be making any legitimate use of the disputed domain name for non-commercial activities.
Accordingly, the Panel finds that the Complainant has satisfied the burden of proof with respect to paragraph 4(a)(ii) of the Policy.
The Complainant must demonstrate that the disputed domain name has been registered and is being used in bad faith.
As claimed by the Complainant, the Respondent cannot have chosen the disputed domain name randomly, without having consideration to the reputation of the trademark LA FRANCAISE DES JEUX, considering that the Respondent is located in France, where the Complainant is particularly well-known.
Furthermore, the disputed domain name is not active, and the Respondent did not invoke any circumstance that could show any good faith use, or even intent to use in good faith.
In the circumstance, any good faith use by the Respondent of the disputed domain name is inconceivable.
See previous decision in case GA Modefine S.A. v. Mark O'Flynn, WIPO Case No. D2000-1424, concerning <armaniboutique.com> (transfer).
As a consequence, the Panel finds that the Complainant has met its burden under paragraph 4(a)(iii) of the Policy and that the Respondent has registered and used the disputed domain name 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 <francaisedesjeux-sms.com> be transferred to the Complainant.
Dated: February 4, 2009