The Complainant is Association Robert Mazars of Cedex, France, represented by Pmr Avocats Law Firm, France.
The Respondent is Integ Kumaran of Tamil Nadu, India.
The disputed domain name <mazarconsulting.com> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 22, 2010. On February 22, 2010, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain name. On February 25, 2010, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com 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 March 1, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 21, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 22, 2010.
The Center appointed Knud Wallberg as the sole panelist in this matter on March 30, 2010. 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 owns numerous trademarks for the name MAZARS and markets various services at web sites incorporating that name.
The Respondent does not have any license or other authorization to use the Complainant's mark or to offer its services.
The Complainant alleges that it is a nonprofit organization which has been registered under the laws of France since 1992. It has registered trademark rights in the name MAZARS in many countries throughout the world, including in the Respondent's country of residence India. It provides various services under that mark, in particular accounting, auditing, and legal services.
According to the Complainant, the disputed domain name is confusingly similar to its mark.
The Complainant states that it has not licensed or otherwise permitted the Respondent to use its marks, that the Respondent is not commonly known by the disputed domain name, and that the Respondent is not using the dispute domain name in good faith.
The Respondent did not reply to the Complainant's contentions.
According to paragraph 15(a) of the Rules the Panel shall decide a complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:
(1) that the domain name registered by respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) that the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules, or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
It is clear that the disputed domain name is confusingly similar (in the sense of the Policy) to the Complainant's mark, because it contains the mark (minus the letter “s”) and merely adds the common word “consulting” to form the disputed domain name, which in this case does not dispel a finding of confusing similarity.
The Panel finds that the conditions in paragraph 4(a)(i) of the Policy are therefore fulfilled.
According to the Complaint, the Complainant has not licensed or otherwise permitted the Respondent to use its trademark.
The Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the Domain Name. The Respondent has not rebutted this and the way the Respondent has been using – or rather not using – (see below) does not support a finding of rights or legitimate interests.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii), cf. 4(c) of the Policy are also fulfilled.
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b)(i) of the Policy provides an example of circumstances which shall be evidence of registration or use in bad faith;
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the holder's documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has 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 the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder's web site or other online location, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of the holder's web site or location or of a product or service on the holder's web site or location.
Accordingly, for the Complainant to succeed, the Panel must be satisfied that the disputed domain name has been registered or is being used in bad faith.
Given the extent of use of the Complainant's trademark including in the country of residence of the Respondent and the distinctive nature of the mark, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant's mark. In view of the Panel, this is underlined by Respondent's offer to sell the disputed domain name to Complainant (see below).
The Panel therefore finds that the disputed domain name was registered in bad faith.
At least at one point, the Respondent had not been using the disputed domain name except for what appears to be a standard holding page stating that the site is “UNDER CONSTRUCTION”. However, as first stated in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, and repeated in many subsequent decisions under the UDRP:
“the concept of a domain name ‘being used in bad faith' is not limited to positive action; inaction is within the concept. That is to say, it is possible, in certain circumstances, for inactivity by Respondent to amount to the domain name being used in bad faith.”
The Panel finds that the Respondent's lack of bona fide use of the disputed domain name is likely to disrupt the business of the Complainant since it could, in this Panel's view, give those Internet users that will look for information on the Complainant on the internet and view the said page the impression that the Complainant is not present on the Internet. The Panel further notes the decision in Association Robert Mazars v. INTEG Kumaran, WIPO Case No. D2009-1679 between the parties to this case in relation to the domain name “mazargroup.com”. The Panel also notes that the disputed domain name incorporates a widely known trademark, that no Response has been filed, and that there appears to be no conceivable good faith use that could be made by the Respondent of the disputed domain name.
Considering all the facts and evidence, the Panel therefore finds that the requirements of paragraph 4(a)(iii) of the Policy are also fulfilled in this case.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <mazarconsulting.com> be transferred to the Complainant.
Dated: April 12, 2010