The Complainant is Société Anonyme des Eaux Minérales d'Evian (SAEME) of Evian-les-Bains, France, represented by Dreyfus & associés, France.
The Respondent is Evian Dayspa of Springfield, Virginia, United States of America.
The disputed domain name <eviandayspaonline.com> (the “Domain Name”) is registered with GoDaddy.com, Inc. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 18, 2010. On March 19, 2010, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 21, 2010, the Registrar 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 24, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 13, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 15, 2010.
The Center appointed Tony Willoughby as the sole panelist in this matter on April 22, 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 is the proprietor of the well-known EVIAN brand of mineral water.
The Complainant is the proprietor of a large number of trade mark registrations for its mark EVIAN in both word mark and device form, including inter alia United States registration number 2904034 for EVIAN (word) registered on November 23, 2004 (application filed November 4, 1999).
The Complainant has also produced evidence to show that it and Danone SA, its parent company, conduct spa activities in France under and by reference to the “Evian” name. The Complainant has produced copies of its parent company's French trade mark applications for EVIAN SPA, EVIAN ROYAL SPA and EVIAN ROYAL SPA CUISINE filed in July to December 2005.
On December 3, 2008 the Complainant filed a complaint with the Center in respect of the domain names <evian-dayspa.com> and <eviandayspa.com>, registered in the names respectively of Vivi Bui and the Respondent. However, the contact details for both domain names were the same and the panelist in that case (Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Vivi Bui and Evian Dayspa, WIPO Case No. D2008-1869) decided to treat the two registrants as one. On February 4, 2009 the panelist issued a decision directing transfer of the two domain names to the Complainant.
On March 25, 2009 the Respondent registered the Domain Name, which is connected to a website purporting to be a website offering spa facilities in the United States. Much of the site is said to be “under construction”.
On June 18, 2009 the Complainant's representative wrote to the Respondent referring to the decision in Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Vivi Bui and Evian Dayspa, supra, and seeking transfer of the Domain Name. The Respondent has not responded to that letter.
The Complainant's contentions in this case are substantially identical to those set out in the decision in Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Vivi Bui and Evian Dayspa, supra. The Complainant contends that the Domain Name is confusingly similar to the Complainant's registered trade mark EVIAN and unregistered trade mark EVIAN SPA. It further contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. Finally, it contends that the Domain Name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant's contentions.
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove that:
(i) The 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 Domain Name has been registered in bad faith and is being used in bad faith.
As can be seen from the factual background set out in section 4 above, the facts of this case are substantially identical to the facts of the previous case between the parties, Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Vivi Bui and Evian Dayspa, supra, in relation to the domain names <evian-dayspa.com> and <eviandayspa.com>, save that in this case there is the added indication of bad faith that the Domain Name was registered within a few weeks of issuance of the earlier decision.
The Panel is in no doubt that the Respondent registered the Domain Name in order to continue the abusive use condemned by the panelist in the previous case. Given that the Domain Name differs from the domain names in the previous case simply by the addition of the descriptive word “online”, it is not surprising that the Panel comes to the same conclusions as the panelist in the previous case and for precisely the reasons set out in his decision.
The Panel finds that the Domain Name is confusingly similar to the Complainant's trade marks EVIAN and EVIAN SPA.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(iv) 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 <eviandayspaonline.com> be transferred to the Complainant.
Dated: May 2, 2010