WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
MEB v. Whois Privacy Services Pty Ltd. / Nandy Sengupta
Case No. D2010-2076
1. The Parties
The Complainant is MEB of Paris, France, represented by Inlex IP Expertise, France.
The Respondent is Whois Privacy Services Pty Ltd. / Nandy Sengupta of Fortitude Valley, Australia and Gurgaon, India, respectively.
2. The Domain Name and Registrar
The disputed domain name <eric-bompart.com> is registered with Fabulous.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2010. On December 3, 2010, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the disputed domain name. On December 6, 2010, Fabulous.com. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on December 8, 2010, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on December 13, 2010.
The Center verified that the Complaint together with the amendment to 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 14, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 3, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 4, 2011.
The Center appointed André Bertrand as the sole panelist in this matter on January 14, 2011. 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 MEB, is a French registered company, which was founded by Mr. Eric BOMPARD, which currently acts has its CEO.
MEB is also the majority shareholder in the French company ERIC BOMPARD SA, which under this tradename ERIC BOMPARD sells cashmere products in France and in several other countries (Germany, Switzerland, Belgium, Hong Kong and China) through some 40 shops.
MEB/ERIC BOMPARD SA also sells its products since 2004 through its website “www.eric-bompard.com”.
MEB is the legitimate owner of the following trademarks ERIC BOMPARD:
French Trademark No. 3572983, registered on the April 29, 2008, in classes 01, 02, 03, 04, 05, 06, 07, 08, 09, 10, 11, 12, 13, 15, 16, 17, 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45 ;
Community Trademark No. 4355699, registered on March 23, 2005, in classes 24, 25 and 35;
International Trademark No. 784208, registered on June 27, 2002, in classes 24 and 25.
MEB is also the legitimate owner of the following domain names :
<ericbompard.com>, registered on July 1, 2004 ;
<ericbompart.fr>, registered on May 16, 2008 ;
<eric-bompard.eu>, registered on July 6, 2006 ;
<eric-bompard.co.uk>, registered on June 16, 2004;
<eric-bompard.us>, registered on March 23, 2006 ;
<eric-bompard.asia>, registered on December 2, 2007;
<ericbompard.asia>, registered on April 8, 2008 ;
<ericbompard.com.cn>, registered on December 15, 2002 ;
<eric-bompard.com.cn>, registered on December 16, 2002.
5. Parties’ Contentions
The Complainant contents that: (i) the disputed domain name is if not identical at least confusingly similar to the trademarks and domain names in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in respect of the domain name; and (iii) the domain name has been registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In absence of any reply to the Complainant’s contentions, Paragraphs 5(e) and 14(a) of the Rules permit the Panel to decide the dispute based on the Complaint.
The Panel may also draw appropriate inferences from the Respondent's default, under paragraph 14(b).
Paragraph 4(a) of the Policy requires the Complainant to prove all of the following in order for its contentions to be supported in the proceeding:
(A) disputed domain names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(B) Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(C) disputed domain names have been registered and is being used in bad faith.
A. Identical or Confusingly Similar
(Policy, para. 4(a)(i), Rules, paras. 3(b)(viii), (b)(ix)(1))
As established the Complainant is the legitimate owner of several trademarks ERIC BOMPARD and several <eric-bompard> or <ericbompard> domain names.
The Disputed Domain Name i.e. <eric-bompart.com> is very similar to the Complainant’s trademarks ERIC BOMPART, since it is identical except for its last letter which is a “T” instead of a “D”.
However, whether in French, in English, in German or in Spanish the name ERIC BOMPARD or ERICBOMPART is pronounced the same way ie “ai ric bom par” since the last letter whether a “T” or a “D” is not pronounced.
Furthermore it is established by the Complainant that a Google search with the words “eric bompart” automatically leads to the result “ERIC BOMPARD”.
Thus Disputed Domain Name i.e. <eric-bompart.com> is confusingly similar with the trademarks “ERIC BOMPARD” and the domain names <eric-bompard.com> or <ericbompard.com>.
B. Rights or Legitimate Interests
(Policy, para. 4(a)(ii), Rules, para. 3(b)(ix)(2))
“Eric BOMPARD” which is the name of a person, is very distinctive, in the sense that this name is not common, usual or descriptive.
The Complainant has established his rights and legitimate interests in the trademark(s) and tradename “ERIC BOMPARD” and in the domain names <eric-bompard.com> or <ericbompard.com>.
The Complainant claims that the Respondent has no rights or legitimate interests in respect of the disputed domain name
Respondent has the burden to demonstrate any such rights or legitimate interests.
Since the Respondent has defaulted, the Panel is unable to ascertain any evidence that would demonstrate the Respondent's rights or legitimate interests in the disputed domain name, as described in paragraph 4(c) of the Policy, or otherwise.
Thus, the Respondent has not established his rights and legitimate interest in the domain name <eric-bompard.com>.
C. Registered and Used in Bad Faith
(Policy, paras. 4(a)(iii), 4(b); Rules, para. 3(b)(ix)(3))
The website attached to the domain name <eric-bompart.com> offers cashmere products and other clothing items through commercial links to website operated by direct competitors of the Complainant.
Thus the web site at <eric-bompart.com> tries to attract clients from the web site <eric-bompard.com> owned and operated by the Complainant.
Thus, the Panel finds, it is established that the Respondent, by using the domain name, has “intentionally attempted to attract, for commercial gain, Internet users to [the Respondent's] website . . ., by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement” of the Respondent's website, under paragraph 4(b)(iv).
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 names, <eric-bompart.com> be transferred to the Complainant.
Dated: January 24, 2011