WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Areva v. Privacy--protect.org / Rampe Purda
Case No. D2010-2143
1. The Parties
The Complainant is Areva of Paris, France, represented by Dreyfus & associés, France.
The First Respondent is Privacy--protect.org of Shanghai, the People’s Republic of China.
The Second Respondent is Rampe Purda of Hailuoto, Finland.
2. The Domain Name and Registrar
The disputed domain name <arevaindia.com> is registered with Hebei Guoji Maoyi (Shanghai) LTD aka HEBEI INTERNATIONAL TRADING (SHANGHAI) CO., LTD dba HebeiDomains.com. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 10, 2010. On December 13, 2010, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, the Registrar 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 17, 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 amended Complaint on December 22, 2010. On December 17, 2010, the Center also transmitted an email to the parties in both Finnish and English language regarding the language of proceedings. On the same day, the Complainant confirmed its request that English be the language of proceeding. The Respondent did not comment on the language of proceeding by the specified due date.
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 the Respondent of the Complaint, and the proceedings commenced on December 23, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 12, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 13, 2011.
The Center appointed Douglas Clark as the sole panelist in this matter on January 20, 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.
Language of Proceedings
The disputed domain name Registration Agreement being in Finnish, pursuant to Rules, paragraph 11, unless otherwise agreed by the parties, or specified otherwise in the Registration Agreement, the language of the administrative proceedings shall be the language of the Registration Agreement, i.e. the default language of the proceedings shall be Finnish. However, the Complainant submitted request for English to be the language of the proceedings along with the Complaint.
Below is a summary of the Complainant’s arguments on the issue of the language of proceedings:
a. The First Respondent Privacy Protect responded in English when first contacted.
b. The disputed domain name includes the English word “India” indicating a familiarity with English.
c. The Complainant is based in France and has no knowledge of Chinese or other languages such as Polish or Portuguese. It would be cumbersome and to the Complainant’s disadvantage to be forced to translate the entire Complaint into Chinese or other languages.
d. English is the international language of commerce and a working language of the Centre.
Pursuant to paragraph 11 of the Rules, the Panel is granted the power to determine the language of proceedings, having regard to the circumstances of the case.
In the case, the Complainant faced the situation of a domain name <arevaindia.com> being registered in China using a privacy shield. It could have no idea what language the registration agreement was in and elected to file a complaint in English. As it turned out the agreement is in Finnish. Given that the disputed domain name relates to India, where English is an official language; the expense of translating the Complaint into Finnish; the website under the disputed domain name primarily resolves in English; the fact that English is widely understood in Finland; and that the Respondents have not responded, the Panel determines that in the circumstances of this case the language of proceedings shall be English.
4. Factual Background
Areva is a world leader in the energy industry. Areva is ranked first in the global nuclear power industry. It covers the entire nuclear cycle, from uranium mining to used fuel recycling, including reactor design and related services.
In 2009, Areva’s revenue was EUR 8.5 billion and it obtained a consolidated net income of EUR 552 million. Today, the company employs 48,000 people around the world. Areva has industrial presence on every continent and is aiming to strengthen its international presence by developing a balance between Europe, North and South America and Asia.
The Complainant is the owner of numerous International, Community, French, Indian and Chinese trademarks that incorporate the term “Areva”.
Areva is present in China where it has won in April 2009 two contracts valued at more than EUR 150 million to supply 18 reactor coolant pumps to the Chinese utility CNPEC. Areva has been present in China since the mid 1980s. Today it has 11 offices and Industrial / Engineering & Project facilities in China. Areva has participated to 6 of the 11 nuclear power plants currently in operation in China. 20 of 24 reactors under construction in China use Areva technology with direct participation in 4 of these 20 reactors. Areva has also built strategic partnerships in China. In particular, in 2009, Areva signed an agreement with CGNPC for the creation of a joint venture in charge of the engineering and procurement of second and third generation power plants.
With regards India, in 2009, Areva entered a partnership to build biomass power plants in India. The total investment represents nearly EUR 100 million.
Areva is also present in Finland, country where one of the Respondents is located. Energy plays a fundamental role in Finland’s economic development. The country essentially has limited natural resources and imports 70% of its energy. Nuclear power currently accounts for slightly more than 27% of the country’s electricity, thanks to 4 reactors. In December 2003, AREVA signed a contract for the construction of the fifth Finnish nuclear reactor. The construction of a sixth nuclear power plant is currently being discussed by Areva.
At the time the Complainant discovered the disputed domain name, the Respondent’s identity and contact details had not been disclosed. The Second Respondent was using a proxy service, Privacy--Protect.org, which hides the user’s identity and contact information from the public.
The disputed domain name first directed towards a parking website mentioning that it was for sale at <sedo.com>. A link on the parking website directed towards <sedo.com> where it was mentioned that the disputed domain name was offered for sale for a price of USD 1888. A cease and desist letter was sent to <sedo.com>. After the reception of that letter, Sedo removed the disputed domain name from its list of domain names for sale. The disputed domain name has ever since directed towards a parking website including various commercial links. A few months ago, the parking website even included links towards the website “www.areva.com” registered by the Complainant.
On August 23, 2010, the Complainant sent a cease and desist letter to the Respondent Privacy--Protect.org by registered letter and via e-mail on the basis of its trademark rights; the cease and desist letter asked this Respondent to amicably cancel the disputed domain name. Between August 23, 2010 and July 13, 2010 the Complainant sent three reminders of the cease and desist letter to the Respondent Privacy--Protect.org. So far as the Complaint was filed, the Complainant has not received any reply.
5. Parties’ Contentions
In accordance with paragraph 4(b)(i) of the Policy, the Complainant requests that the disputed domain name <arevaindia.com> be transferred to the Complainant.
The Complainant submits that the grounds for these proceeding are listed in paragraph 4(a) of the Policy.
Identical or Confusingly Similar
The Complainant and its trademark AREVA enjoy a worldwide reputation. Areva is the owner of numerous AREVA trademarks across the world. The Complainant is in particular the owner of the following International Trademark Registrations designating China:
AREVA International Registration Number 783282 registered on the November 28, 2001 covering goods and services in classes 1, 4, 6, 7, 9, 11, 19, 35, 36, 37, 38, 39, 40, 41 and 42.
AREVA International Registration Number 839880 registered on July 16, 2004 covering goods and services in classes 6, 7, 9, 17, 35, 37, 38, 39, 40, 41, 42 and 45.
The Complainant is also the owner of the 12 Trademark Registrations in India for AREVA in classes 1, 4, 6, 7, 9, 11, 19. (Some classes have more than one registration).
In addition, the Complainant is also notably the owner of a Community Trademark Registration for AREVA Registration Number 2478840 registered on October 29, 2004 covering goods in classes 1, 4, 6, 7, 9, 11, 19, 35, 36, 37, 38, 39, 40, 41 and 42.
The name Areva is also the corporate and trade name of Complainant.
The Complainant argues the disputed domain name is confusingly similar to the Complainant’s trademark AREVA for the following reasons.
The disputed domain name differs only from the Complainant’s trademark by the addition of the term “india”. In comparing the trademark AREVA and the disputed domain name <arevaindia.com>, it is appropriate to give most weight to the most outstanding portion of the terms. The most outstanding portion of each term at issue is “areva” since it is in first position in the domain name and since it is a distinctive term without any meaning, in any language.
The Complainant argues that in many WIPO decisions, the panel considered that the incorporation of a trademark in its entirety in the disputed domain name may be sufficient to establish that said domain name is identical or confusingly similar to the Complainant’s registered mark, citing Société des Participations du Commissariat à l’Energie Atomique v. David Morton, WIPO Case No. D2007-0679; and AT&T Corp. v. William Gormally, WIPO Case No. D2005-0758; and AREVA v. MIC / Hussain, Syed, WIPO Case No. D2010-0098.
The Complainant argues, the mere addition of the term “india” in the disputed domain name is not sufficient to distinguish the said domain name from the Complainant’s AREVA trademark and that “India” is a common English generic term and that adding generic words is insufficient to give any distinctiveness to the domain name in dispute, citing Fondation Le Corbusier v. Monsieur Bernard Weber, Madama Heidi Weber, WIPO Case No. D2003-0251; and The Coca-Cola Company v. PrivacyProtect.org / Acosta Jose Julian, WIPO Case No. D2010-0335.
Further, the addition of the term “india” increases the likelihood of confusion rather than distinguishing the trademark AREVA from the disputed domain name because Internet users are likely to believe that the disputed domain name <arevaindia.com> is specifically dedicated to India where the Complainant has an ever increasing activity. The Complainant submits that generally speaking, a simple geographic identifier accompanying the Complainant’s trademark is usually deemed as increasing the likelihood of confusion citing Compagnie Gervais Danone v. Amit Kumar, WIPO Case No. D2010-0563.
The mere adjunction of a gTLD such as “.com”, is irrelevant because it is well-established that the generic Top Level Domain is not an element of distinctiveness to take into consideration when assessing the identity or confusing similarity of the Complainant’s trademark with the disputed domain name.
In addition, the Complainant has used the trademark AREVA in connection with a wide variety of products and services relating to production, distribution and transmission of energy around the world, including in Asia. Consequently, the public has learned to perceive the goods and services offered under this mark as being those of the Complainant.
As a result, the public would reasonably assume that the domain name such as this, composed with the Complainant’s trademark, is related to the Complainant or owned by the Complainant.
As a result, it clearly appears that this disputed domain name is almost identical or confusingly similar to the Complainant’s trademark AREVA and it thus creates a high likelihood of confusion.
Rights or Legitimate Interests
The Complainant submits that the Respondents have no rights or legitimate interests in respect of the disputed domain name.
The Respondents did not demonstrate, before receiving any notice of the dispute, use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.
Counsel for the Complainant sent a cease and desist letter to the Respondent Privacy--Protect.org informing it that the disputed domain name infringed on the Complainant’s registered trademarks; the letter also demanded that the Respondents permanently cease all use of the disputed domain name. Up until the day the Respondents received the cease and desist letter, the Complainant has not been provided with at least explanations justifying the disputed registration. The Complainant assumes that the Respondents received its counsel’s letter since the Registrar specifically mentions the following on its website:
“If you want to contact owner of some domain registered with us use contact details from whois.hebeidomains.com.
All emails and addresses in our whois database are valid. If domain owner does not respond, it just means he is not interested in answering you.”
Furthermore, the Respondents are not commonly known by the name “Areva”, not in any way affiliated with Complainant, nor authorized or licensed to use the AREVA trademark.
The Complainant argues that the further proof that Respondents created the disputed domain name and the website for financial gain is that the disputed domain name was for sale on Sedo for a minimum of USD 1888. Offering a domain name for sale via Sedo has already been considered as demonstrating lack of legitimate interest.
Registered and Used in Bad Faith
The Complainant argues the disputed domain name has been registered and used in bad faith.
Registered in bad faith
The Complainant argues that it is paramount to have in mind the bad faith atmosphere in which the disputed domain name was registered. There is no better way to portray this atmosphere than by citing a phrase from the Registrar, who is also the Respondent providing the privacy shield service for the registrant of the disputed domain name:
“Anyone who will abuse our email with retarded questions like “How much for this domain” or “How can I contact owner of this domain” will be blacklisted and publicly ridiculed.”
In this phrase, the Respondent is trying to convince trademark holders not to act against cybersquatting activities by threatening retaliation. Retaliation could take various aspects such as disparaging or false comments on potential complainants. The Respondents know that these actions are usually feared by large companies willing to avoid bad publicity. The Complainant argues that this attitude towards trademark holders is pure bad faith.
The Complainant further argues that it is implausible that Respondents were unaware of the Complainant when it registered the disputed domain name.
Firstly, the Complainant is a well-known group throughout the world, including in China and India. These countries and others have been relying on the Complainant’s skills and expertise to develop their nuclear technology for the past 20 years. Indeed, as of December 2009, Areva had more than 3,700 employees in China with commercial representation and production sites spread across 12 provinces. In India, Areva already operates 18 units and is currently building five more ones. It is also involved in supplying contracts and agreements to develop its activity in this country to satisfy its ever growing energy needs.
Secondly, AREVA is a well-known trademark throughout the world; several panels have previously mentioned its worldwide reputation, making it unlikely that the Respondents were not aware of the Complainant’s proprietary rights in the trademark (i.e. AREVA v. St. James Robyn Limoges, WIPO Case No. D2010-0017).
Additionally, a quick trademark or online search would have shown the Complainant’s registered AREVA trademarks and the existence of the company. Such searches could have been expected especially in light of the fact that the Respondent Privacy—Protect.org is not inexperienced in holding domain names since it is a privacy shield service. It thus seems likely that it would have done some research on the disputed domain name.
Use in bad faith
The Complainant argues the Respondents are making use of the disputed domain name in bad faith for the following reasons:
(a) Respondents registered the disputed domain name to display commercial links enabling it to make a profit from its possession of the disputed domain name.
(b) the parking website initially mentioned the fact that the disputed domain name was for sale. A link towards the well known website “www.sedo.com” specified that the disputed domain name was for sale for at least USD 1,888. The parking website was therefore used to direct Internet users towards an auction website offering the disputed domain name for a price far in excess of the Respondents’ out-of-pocket costs directly related to the disputed domain name.
(c) Furthermore, the Respondents did not reply to the Complainant’s cease and desist letter despite its numerous reminders. In this respect, previous panels have held that the Respondents’ failure to reply to the Complainant’s cease and desist email supports an inference of bad faith (Fifth Third Bancorp v. Secure Whois Information Service, WIPO Case No. D2006-0696).
The Respondents did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, the Complainant must prove the following:
(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 Respondents have no rights or legitimate interests in respect of the disputed 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 has exclusive rights in the mark AREVA and has provided evidence of this fact. The disputed domain name consists of the Complainant’s trademark, plus the geographic term “India” and the top level domain name “.com”. It is well-established that addition of a geographic place name and the specific top level of a domain name such as “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar. Indeed in this case the Panel agrees with the Complainant’s contention that the addition of a country name to a domain name, in general, will add to confusion.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights.
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, the Complainant has the burden of demonstrating the Respondents’ lack of rights or legitimate interests.
In this case, the Complainant states that it has not authorized the Respondents to use its AREVA mark, whether in a domain name or otherwise, and there is no evidence to the contrary. Nor is there any evidence of the disputed domain name having been used for a fair or legitimate noncommercial purpose, without intent for commercial gain.
Consequently, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b)(iv) provides examples of circumstances which shall be evidence of registration and use in bad faith, which include:
“by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] 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 [the Respondent’s] web site or location or of a product or service on [the Respondent’s] web site or location”.
Given the widespread use and goodwill the Complainant’s AREVA mark, the direction of the disputed domain name to a parking page it is inconceivable to the Panel that the Respondents were not aware of the Complainant and the Complainant’s activities when registering the disputed domain name. The offer to sell the disputed domain name for USD 1,888 and the redirection to a parking page show clear use in bad faith.
The Panel therefore finds that, in the circumstances of this case, the disputed domain name was registered and being used 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 disputed domain name, <arevaindia.com> be transferred to the Complainant.
Dated: January 23, 2011