WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Opera National de Paris v. Admin, Domain email@example.com, NA
Case No. D2011-2055
1. The Parties
The Complainant is Opera National de Paris of Paris, France, represented by Cabinet Santarelli, France.
The Respondent is Admin, Domain firstname.lastname@example.org, NA of California, United States of America.
2. The Domain Name and Registrar
The disputed domain name <operadeparis.com> is registered with GoDaddy.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 22, 2011. On November 23, 2011, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On the same date, GoDaddy.com, Inc. 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 November 28, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was December 18, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 20, 2011.
The Center appointed Ross Wilson as the sole panelist in this matter on January 13, 2012. 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 is a French public utility company. Its origins stem from the Paris “Opera Academy” founded in 1669 by Louis XIV. Its name has changed several times since then. Since 1973 it was known as the Theatre National de l’Opera de Paris. In 1990 the reunion of OpéraGarnier (which opened in 1875) and Opéra Bastille (inaugurated in 1989) formed Opera de Paris under its current public company status. Opera de Paris changed its name in 1994 to become Opera National de Paris. The Complainant is commonly known throughout the world as Opera de Paris.
The Complainant is a renowned French opera company known worldwide in the arts sector specifically for lyrical art and choreography. It manages two establishments in Paris (OpéraGarnier and Opéra Bastille), creates and hosts shows in Paris and, through its ballet company, conducts tours in France and around the world. The Complainant provides online services for the reservation and purchase of tickets for shows given at the two Paris Opera houses through its official website <operadeparis.fr>.
The Complainant’s trademark OPERA DE PARIS was first registered on December 13, 2004. The Complainant’s device mark using the words OPERA NATIONAL DE PARIS was registered on October 4, 1994.
The disputed domain name was created on June 30, 2007. According to the Registrar the disputed domain name was registered by the Respondent on April 3, 2011.
5. Parties’ Contentions
The Complainant contends that the disputed domain name reproduces in its entirety the Complainant’s mark OPERA DE PARIS with only the addition of the gTLD extension “.com”. The Complainant considers the disputed domain name is identical to the Complainant’s trademark OPERA DE PARIS. Also, the disputed domain name is confusingly similar to the words in the Complainant’s device trademark OPERA NATIONAL DE PARIS.
According to the Complainant no license or authorisation has been given to a third party by the Complainant to use the OPERA DE PARIS trademark or to register any domain name incorporating the OPERA DE PARIS trademark. The Respondent has therefore not been licensed, contracted or otherwise permitted by the Complainant in any way to use the OPERA DE PARIS trademark or to register any domain name incorporating the OPERA DE PARIS trademark, nor has the Complainant acquiesced in any way to such use or registration of the OPERA DE PARIS trademark by the Respondent. The Respondent, at least to the knowledge of the Complainant, has no rights to or interests in the disputed domain name.
The Complainant points out that use of the disputed domain name resolves to a website that shows French language sponsored links relating to entertainment services and particularly to the online selling of opera/theater tickets. Use of the search service results in the display of various links to competing third party websites, such as <ticketnet.fr> and <pariseventicket.com>. For instance, tickets for the ballet representation of “Swan Lake” (“Le Lac des Cygnes”) are the first items proposed for sale when the link to the website <pariseventicket.com> is activated. The Complainant considers that by using the disputed domain name the Respondent is intentionally trying to attract Internet users by creating a likelihood of confusion with the Complainant’s mark. According to the Complainant the traffic generated on the disputed domain name through the confusion caused in the consumers’ minds by the use of the Complainant’s trademark OPERA DE PARIS generates income for the Respondent and disrupts the Complainant’s business.
The Complainant claims that the Respondent was aware of the existence of the Complainant’s mark OPERA DE PARIS because the website to which the disputed domain name resolves is in the French language and contains links to websites proposing the purchase of entertainment services and opera tickets which correspond to the core business of the Complainant. The Complainant moreover claims that this use has the potential to disrupt the business of the Complainant.
The Complainant contends that the Respondent obtains a financial gain every time an Internet user inadvertently accesses its website and activates any of the sponsored links. The Complainant maintains that this circumstance is proof of the registration and use of the disputed domain name in bad faith, particularly since it is linked to services similar to those provided by the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The onus is on the complainant to prove each of the three elements set out in paragraph 4(a) of the Policy:
(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 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 provided evidence demonstrating that it has had registered rights in the trademark OPERA DE PARIS since 2004.
The disputed domain name consists of the Complainant’s trademark, in its entirety and the gTLD extension “.com”. It has been held in many previous UDRP cases that incorporating a trademark in its entirety is typically sufficient to establish that a disputed domain name is identical or confusingly similar to a registered trademark (see Oakley, Inc. v. Kate Elsberry, Elsberry Castro, WIPO Case No. D2009-1286 and World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles, WIPO Case No. D2000-1306).
The only difference between the Complainant’s trademark and the disputed domain name is the addition of the gTLD “.com” which cannot be considered distinctive and does not affect the question of identical or confusing similarity.
In view of the above, the Panel finds that the Complainant’s trademark is readily recognizable within the disputed domain name and is likely to lead to Internet user confusion. Therefore, the Complainant has proven that the disputed domain name is identical or confusingly similar to the trademark in which it has demonstrable rights. The Complainant has satisfied the first element of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out how a respondent can demonstrate rights to or legitimate interests in a disputed domain name. In this case, the Respondent has not filed any submission or evidence to demonstrate its rights or legitimate interests in the disputed domain name. Consequently, paragraph 14(b) of the Rules allows the Panel, in the absence of exceptional circumstances, to draw such inferences from the absence of a Response from the Respondent as it considers appropriate.
The Panel finds that the Respondent is trying to benefit from the reputation of the Complainant’s well known trademark. The Respondent has chosen to use a domain name that reflects the Complainant’s trademark in its entirety without authorisation by the Complainant. Based on the information provided by the Complainant the disputed domain name resolves to a website that shows sponsored links relating to entertainment services and the online selling of opera/theater tickets. The Complainant advises that the use of the search service results in the display of various links to competing third party websites such as <ticketnet.fr> and <pariseventicket.com>. No rights or legitimate interests derive from such use of the Complainant’s trademark. Previous UDRP panels have held that rights or legitimate interests cannot be created where the respondent would not choose such a domain name unless it was seeking to create an impression of association with the complainant (see Drexel University v. David Brouda, WIPO Case No. D2001-0067).
There is no evidence before the Panel to show that the Respondent was acting in pursuance of any rights or legitimate interests when registering the disputed domain name. In addition, the Complainant has denied having any connection with the Respondent or providing any authorisation. In Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055, the panel stated, “in the absence of any license or permission from the Complainant to use any of its trademarks or to apply for or use any domain incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the domain name could be claimed by the Respondent”.
As held by previous panels in similar circumstances the use of the disputed domain name to direct visitors to various third party commercial websites does not constitute legitimate bona fide use under the Policy and does not confer legitimate interests in the disputed domain name (see Sports Holdings, Inc. v. Whois ID Theft Protection, WIPO Case No. D2006-1146). In that case the panel stated that “the evidence in the Complaint indicates that the website at the disputed domain name is commercial in the sense that it appears to provide links to other sites being competitors of the Complainant, and of an apparently commercial nature from which the Respondent presumably derives or intends to derive profit. Such use does not constitute a legitimate non-commercial or fair use of the disputed domain name by the Respondent within the meaning of Paragraph 4(c)(iii) of the Policy”.
Despite the opportunity provided through this administrative procedure, the Respondent has chosen not to rebut the Complainant’s case or assert any rights or legitimate interests in the disputed domain name.
Based on the above, the Panel considers the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel is satisfied that the Complainant has proven the second element of the Policy.
C. Registered and Used in Bad Faith
For the purposes of determining if there was bad faith registration and use, the Panel considered the circumstances of the registration and use of the disputed domain name as set out in paragraph 4(b) of the Policy, noting that it does not impose any limitation on how the registration and use of the domain name in bad faith may be evidenced.
The Panel considers that the Complainant has made a case that the Respondent has registered and used the disputed domain name in bad faith.
In the Panel’s view the Respondent’s registration of the disputed domain name represents a deliberate disregard of the Complainant’s trademark rights. Clearly the Respondent knew of the Complainant’s well-known trademark at the time of registration because the Complainant’s mark is used in its entirety in the disputed domain name and the website links to various third party commercial websites including competitors of the Complainant. As stated in Oakley, Inc. v. Joel Wong/BlueHost.com- INC., WIPO Case No. D2010-0100 “It is inconceivable […] that the Respondent registered the disputed domain name without prior knowledge of the Complainant’s rights”. Also, as expressed in Singapore Airlines Limited v. European Travel Network, WIPO Case No. D2000-0641, where the selection of domain names is so obviously connected to the complainant’s trademark their very use by someone with no connection with the company suggests opportunistic bad faith. Similarly, in Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil, WIPO Case No. D2000-1409, where the respondent registered a number of domain names incorporating a well-known trademark in its entirety, the panel stated, “that it is inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the complainant”
Noting that the Respondent has not rebutted any of the Complaint’s contentions the Panel considers that the Respondent’s choice of the disputed domain name was a deliberate action to gain a commercial advantage.
On the basis of the above and the fact that the Respondent has no rights or legitimate interests in the disputed domain name, the Panel is satisfied that the Respondent’s conduct falls within paragraph 4(b)(iv) of the Policy. Therefore, the Panel finds that the Complainant has demonstrated that the disputed domain name was registered and used in bad faith.
For 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 <operadeparis.com> be transferred to the Complainant.
Dated: January 27, 2012