The Complainant is Novozymes A/S of Bagsvaerd, Denmark.
The Respondent is Mouni Bezia of Montrouge, France.
The disputed domain name <novozymes.tel> is registered with Gandi SAS.
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 11, 2009.
On June 12, 2009, the Center transmitted by email to Gandi SAS a request for registrar verification in connection with the disputed domain name.
On the same day, Gandi SAS transmitted by email to the Center its verification response. Gandi SAS confirmed that the Respondent was listed as the registrant, but disclosed additional contact information for the disputed domain name that had not been submitted by the Complainant in its Complaint, adding that the language of the registration agreement was French.
As a result, on June 24, 2009, the Center invited the Complainant to take into account this information and to amend its Complaint. It also informed the Complainant that pursuant to the Rules, paragraph 11, the default language of the administrative proceeding is the language of the registration agreement, i.e. French. Accordingly, the Center invited the Complainant to provide satisfactory evidence either of an agreement between the parties that the proceedings should be in English, or to submit a request for English to be the language of the administrative proceedings and provide supporting arguments to that purpose.
The amended Complaint was filed in English on June 26, 2009, accompanied by a request for the administrative proceeding to be in English. The Center verified that the Complaint together with the amended 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 on July 6, 2009 the Respondent of the Complaint, drawing her attention upon the fact that, given the circumstances, it had decided to accept the Complaint as filed in English, but would accept a Response either in French or in English, leaving it up to the Panel to determine the language of the proceedings, which commenced on that day.
On July 10, 2009, the Complainant spontaneously submitted additional evidence to support its Complaint. On the same day, the Center informed the Complainant that the Rules did not provide for Supplemental Filings by either party, and that it would be up to the Panel to decide whether such filings should be considered or not in the decision to be rendered.
In accordance with the Rules, paragraph 5(a), the due date for Response was July 26, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 27, 2009.
The Center appointed Philippe Gilliéron as the sole panelist in this matter on August 3, 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 Complainant is a biotech-based company and is the holder of numerous trademarks consisting of or containing the word NOVOZYMES around the world, including in France. It also owns forty-five domain names consisting of the NOVOZYMES mark, including <novozymes.com> and <novozymes.fr>.
The Respondent registered the domain name <novozymes.tel> on March 29, 2009.
On July 8, 2009, the Complainant received an e-mail from [email address]@voila.fr with a copy to the Respondent, stating in particular: “Dear Emil, we revert to you further your complaint regarding the domain NOVOZYMES.TEL. We would like to inform you that we are ok to transfer to you immediately this domain. The price for this domain is 3000 dollars USD. […].”
The Complainant did not respond to that offer but transmitted it to the Center to support its Complaint on July 10, 2009. There was no further contact between the Parties.
The Complainant argues that the domain name <novozymes.tel> is identical to its trademarks.
It further adds that the Respondent has no rights or legitimate interests in respect of the domain name. It has never licensed nor authorized the Respondent to use its trademarks or to register a domain name consisting of the term NOVOZYMES. The Respondent has not made any use or demonstrable preparations to use the domain name at dispute in connection with a bona fide offering of goods or services, she has not been commonly known under that name and has never acquired any trademark in that name.
The Complainant finally asserts that the domain name was registered and is being used in bad faith. Considering its reputation, the Respondent could not be unaware of the Complainant's rights in the word NOVOZYMES, all the more since the trademark has a very distinctive character that makes it very unlikely for a third party to adopt it legitimately. In its Supplementary Filing of July 10, 2009, the Complainant argues that the domain name was altered after the notification of the Complaint; it submits a screenshot stating “novozymes sucks and starve the planet!!! Do you want some investors? Let me show you!” followed by several links related to porn content or denouncing starvation.
The Respondent did not reply to the Complainant's contentions.
Paragraph 15(a) of the Rules instructs this Panel to “[…] decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
In view of the Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to the Rules, paragraphs 5(e), 14(a) and 15(a) and will draw such inferences as it considers appropriate pursuant to the Rules, paragraph 14(b).
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Two procedural issues deserve being addressed here before proceeding on the merits of the case. First, the issue of the supplementary filing of July 10, 2009 (a) and, second, the issue of the language proceedings (b).
(a) Paragraph 12 of the Rules unambiguously provides that the Panel “may request, in its sole discretion, further statements or documents from either of the Parties”. There is no provision in the Rules for a party to file an additional submission without leave of the Panel. This is because, under the expedited process provided under the Policy and Rules, each party is given one opportunity to put forward all the material on which it wishes to rely and is expected to do so.
The question whether paragraph 12 of the Rules shall be constructed as precluding acceptance of additional unsolicited submission has been considered in a number of panel decisions. A majority view holds that, “while panels must be mindful of the need for procedural efficiency, they have discretion to accept an unsolicited supplemental filing from either party, bearing in mind the obligation to treat each party with equality and ensure that each party has a fair opportunity to present its case” (See paragraph 4.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions and cases cited therein). One therefore has to appraise the circumstances of each case before deciding whether to admit unsolicited additional submissions.
In the present case, the Panel is willing to accept the supplementary filing. The evidence brought by the Complainant on July 10, 2009 could obviously not have been provided on June 11, 2009 when the Complaint was filed, as it refers to an offer for sale and an alteration of the website that are both directly linked to the notification of the Complaint to the Respondent on July 6, 2009. Considering that these events occurred on July 8, 2009, i.e. after such notification, and that they were submitted to the Center on July 10, 2009, the Complainant exercised the diligence that one could expect from it. As a consequence, and considering the high relevance of this supplementary information to the case, the Panel is of the opinion that this evidence has to be taken into consideration. To rule otherwise would amount to excessive formalism and run in contradiction to the efficiency sought for by the UDRP.
(b) Paragraph 11 of the Rules provides that the language of the proceeding shall be the language of the Registration Agreement. In the present case, the Registrar submitted that the Registration Agreement was in French. On July 26, 2009, the Complainant requested the proceedings to be conducted in English, as it did not have internal resources to conduct the proceedings in English. Such an argument is not a convincing reason that should lead to admitting a derogation to paragraph 11 of the Rules.
Paragraph 10(b) of the Rules requires the Panel to ensure that the Parties to this proceeding “are treated with equality and that each Party is given a fair opportunity to present its case”. In the present case, the Panel is nevertheless convinced that the use of the English language did not prevent the Respondent from presenting her case to the Panel. On July 6, 2009, the Center drew the attention of the Respondent to her right to request the proceedings to be conducted in French, or both in English and in French. The Respondent never replied to the Center's communication. More than that, the offer for sale sent to the Complainant on July 8, 2009 suggests that the Respondent appears to be perfectly capable of understanding and defending her case in English, a fact also pointed out by the modifications made to the website after the notification of the Complaint, all in English.
As a result, and in line with paragraph 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions and cases cited therein, the Panel decides that this administrative proceeding be in English.
According to the Policy, paragraph 4(a)(i), the Complainant has to prove that the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant proved to be the right holder of numerous trademarks containing the word “NOVOZYMES” on a worldwide basis, including in France where the Respondent is located. The domain name <novozymes.tel> being identical to the Complainant's trademark, the Panel finds that the Policy, paragraph 4(a)(i) has been satisfied.
According to the Policy, paragraph 4(b)(ii), the Complainant has to demonstrate that the Respondent has no rights or legitimate interests in the domain name.
In Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624, the panel stated: “Where a complainant has asserted that the respondent has no rights or legitimate interests in respect of the domain name, it is incumbent upon the respondent to come forward with concrete evidence rebutting this assertion”. Subsequent panels have developed a consensus view that where the complainant makes a prima facie case that the respondent has no rights or legitimate interests, it falls to the respondent to show circumstances establishing such rights or legitimate interests. See e.g. paragraph 2.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions and cases cited therein.
The Panel notes that the disputed domain name resolved to a parking page prior to these proceedings. Based upon the evidence brought by the Complainant and the heavy use of the trademark NOVOZYMES over the years on a worldwide basis, it is in the Panel's view more likely that not that the Respondent was aware of the existence of Complainant's trademark, as suggested by the fact that Respondent contacted the Complainant to offer the domain name for sale on July 8, 2009, i.e. right after the notification of the Complaint which took place on July 6, 2009. This awareness is furthermore pointed out by the modifications made to the website located at “novozymes.tel” after this notification, which consisted of several links which were clearly aimed at denigrating the Complainant's activities, thus suggesting that the Respondent was well aware of the Complainant's rights when she registered the disputed domain name.
In this case, the Complainant has made a prima facie case and, even though put on notice of the Complainant's allegations, the Respondent does not bring any evidence that would demonstrate any right or legitimate interests in the domain name as the Respondent did not file a Response. More specifically, the Respondent does not demonstrate that:
(i) before any notice to it of the dispute, she used or made 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 is commonly known by the domain name, even if she has acquired no trademark or service mark rights; or
(iii) the Respondent is 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.
Consequently, the Panel considers the Policy, paragraph 4(a)(ii) to be fulfilled.
For a Complaint to succeed, the Panel must be satisfied that a domain name has been registered and is being used in bad faith (Policy, paragraph 4(a)(iii)).
To have registered the domain name in bad faith, the Respondent first must have been aware of the existence of the Complainant. The Panel finds such obviously is the case here.
The Panel is persuaded from the circumstances in this case that the Respondent registered the disputed domain name primarily for the purpose of selling it to the Complainant for an amount greatly in excess of any documented out-of-pocket costs incurred by the Respondent and directly related to the domain name, as evidenced by the e-mail of July 8, 2009 inviting the Complainant to pay an amount of USD 3000 to recover the domain name. Here, such an offer, addressed right after the notification of the Complaint, is compelling evidence of the Respondent's bad faith under paragraph 4(b)(i) of the Policy. This circumstance already enables the Panel to consider Policy, paragraph 4(a)(iii) to be satisfied.
The bad faith of the Respondent is furthermore evidenced by the modifications brought to the website located at “novozymes.tel” after the notification of the Complaint, which contains a notice stating “novozymes suck and starve the planet!!!!! Do you want some investors? Let me show you!”, followed by several links related to content clearly aiming at denigrating the Complainant. Considering the circumstances of the case and the time frame in which such modifications were brought (i.e. right after the notification of the Complaint), such usage clearly points out the bad faith of the Respondent.
Consequently, the Panel considers Policy, paragraph 4(a)(iii) to be satisfied.
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 <novozymes.tel> be transferred to the Complainant.
Dated: August 6, 2009