WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
MEB v. Domain Administrator
Case No. D2010-1737
1. The Parties
The Complainant is MEB of Paris, France, represented by Inlex IP Expertise, France.
The Respondent is Domain Administrator of Shanghai, China.
2. The Domain Name and Registrar
The disputed domain name <ericbompart.com> is registered with Moniker Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 13, 2010. On October 13, 2010, the Center transmitted by email to Moniker Online Services, LLC. a request for registrar verification in connection with the disputed domain name. On October 14, 2010, Moniker Online Services, LLC. 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 October 22, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was November 11, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 12, 2010.
The Center appointed Fleur Hinton as the sole panelist in this matter on November 24, 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.
4. Factual Background
The Complainant sells clothing and specializes in cashmere clothing.
The trademark ERIC BOMPARD is the name of the founder and of the Complainant and has been registered as a trademark in France since May 5, 1992. Since then it has been registered as a Community Trade Mark and is the subject of international registrations covering China, Australia, Japan, South Korea, Norway, Singapore, Turkey, the United States, Albania, Bosnia-Herzegovina, Bulgaria, Switzerland, Croatia,
Liechtenstein, Morocco, Monaco, Romania, Russia, Ukraine, and VietNam. It is used by the Complainant’s registered licensee, Eric Bompard S.A.
The Complainant is also the registrant of the following domain names:
- <ericbompard.com>, created on July 1, 2004;
- <ericbompard.fr>, created on May 16, 2008;
- <eric-bompard.eu>, created on July 6, 2006;
- <eric-bompard.co.uk>, created on June 16, 2004;
- <eric-bompard.us>, created on March 23, 2006
- <eric-bompard.asia>, created on December 2, 2007
- <ericbompard.asia>, created on April 8, 2008
- <ericbompard.corn.cn>, created on December 15, 2002
- <eric-bompard.com.cn>, created on December 16, 2002.
M. Eric Le Marec, in partnership with the SCP SIMONIN - LE MAREC – GUERRIER Huissiers de Justice at the High Court of Paris, has certified that on August 16, 2010 he visited the website at “www.ericbompard.com” where he was offered links to 10 French language websites offering clothing. (The role of un huissier de justice is to certify that he has seen documents which appear to establish certain facts).
On December 8, 2010 the Panel in this matter visited the website at the address “www.ericbompart.com”. It offered a variety of sponsored links to English language websites offering clothing.
5. Parties’ Contentions
The Complainant states that the trademark ERIC BOMPARD is the name of its founder and is the subject of many trademark registrations and domain name registrations. The disputed domain name is confusingly similar to that trademark, having only one letter’s difference. The trademark has been used to a very substantial extent internationally and the Complainant has engaged in considerable advertising and promotional activities. Since 2004 the Complainant has also sponsored an annual figure skating competition in Paris. The winner is awarded the “Trophee Eric Bompard”.
In addition, when the search term “eric bompart” is entered into the Google search engine, the search engine prompts, “Do you mean “Eric Bompard”?
For these reasons, the Complainant contends, the Respondent must have been aware that it was using a trademark confusingly similar to ERIC BOMPARD.
The Complainant has conducted a search of the WIPO trademark database and not found an entry for ERIC BOMPART. The Complainant has not authorized the Respondent to use the trademark or one confusingly similar to it. The website is not selling the Respondent’s goods but, rather, providing sponsored links to other French language clothing websites, thereby using the Complainant’s trademark to attract business to itself. Therefore the Respondent has no legitimate rights to the trademark.
There is no conceivable reason for the Respondent to register a name which has no connection to itself and, in view of the very wide reputation of the Complainant’s trademark generally and, on the Internet in particular it could not fail to have realized that it was registering a domain name with a trademark confusingly similar to that of the Complainant. Therefore, it registered the disputed domain name in bad faith. Its use of the domain name to attract visitors to the website where they are offered a selection of sponsored links to French websites, several of which offer cashmere clothing, is a use in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In order to have the disputed domain name <ericbompart.com> transferred to it, the Complainant must establish 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 domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant asserts trademark rights in the personal name “Eric Bompard”. The trademark is registered in many countries around the world and clearly has a substantial reputation. The Panel finds that the disputed domain name, having only one letter’s difference to the Complainant’s trademark, is confusingly similar to it.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy states that a respondent has a right or legitimate interest in a disputed domain name where:
(i) Before any notice to respondent of the dispute, respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name is in connection with a bona fide offering of goods or services; or
(ii) respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if respondent has acquired no trademark or service mark rights; or
(iii) respondent is making a legitimate non-commercial 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.
Although the onus of establishing that the respondent lacks rights or legitimate interests in the disputed domain name rests on the complainant, it is difficult to prove a negative and, therefore, the threshold for proving that is low, see Document Technologies, Inc. v. International Electronic Communications, Inc., WIPO Case No. D2000-0270.
The Respondent elected not to lodge a response even though it is clearly in a better position to establish its rights or legitimate interests, if any, than the Complainant is to establish a negative. Therefore the Complainant need only establish a prima facie case. See Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
The Complainant has no connection with the Respondent.
The disputed domain name has no similarity to the Respondent’s name.
The Complainant has shown that the Respondent is not making a legitimate offering of goods or services on the website at the disputed domain name. There does not appear to be any business or offering by the Respondent under this name. The Respondent is merely attracting visitors to the website for the purpose of offering them sponsored links to other websites which are in competition with those of the Complainant.
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
In order to satisfy this requirement of the Policy, the Complainant must establish that the Respondent has registered the disputed domain name in bad faith and is using it in bad faith. The UDRP states that the following circumstances are indicative of registration and use in bad faith:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent 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 respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of that web site or location or of a product or service on its web site or location.
The earliest registration of the Complainant’s trademark ERIC BOMPARD is dated May 5, 1992. Since then it has been used to a very substantial degree in the field of clothing. The Complainant hosts a number of websites promoting and selling its products. The Panel finds, therefore, that the Respondent’s registration was in bad faith.
Is the Respondent using the disputed domain name in bad faith? By using the disputed domain name it has attempted to attract to its website people who would have intended to visit the Complainant’s own website(s). Such people would have been seeking a website selling clothing and, on seeing the Respondent’s sponsored links, would be likely to visit those websites rather than the Complainant’s. The Panel finds that the Respondent has 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 <ericbompart.com> be transferred to the Complainant.
Dated: December 8, 2010