WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Société Nationale de Radiodiffusion Radio France v. Richard Namiech
Case No. DTV2011-0011
1. The Parties
The Complainant is Société Nationale de Radiodiffusion Radio France of Paris, France, represented by Nameshield, France.
The Respondent is Richard Namiech of Paris, France, represented per se.
2. The Domain Name and Registrar
The disputed domain name <franceinter.tv> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 5, 2011. On September 5, 2011, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com. a request for registrar verification in connection with the disputed domain name. On September 14, 2011, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.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 September 14, 2011 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same date, the Complainant filed an amended Complaint.
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 September 15, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was October 5, 2011. The Response was filed with the Center on September 26, 2011.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on October 19, 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.
Regarding the language of the proceeding, the Center ascertained from the Registrar that the language of the Registration Agreement is English. Accordingly, the Panel determines that pursuant to paragraph 11(a) of the Rules the language of the proceeding is English, i.e., the language of the registration agreement.
4. Factual Background
The Complainant is a French public service radio broadcaster, which runs seven national networks, including FRANCE INTER. The Complainant describes that network as its "generalist" radio station, providing entertaining and informative talk, mixed with a wide variety of music, and hourly news bulletins with longer news coverage in the morning, midday, and early-evening peaks. The Complainant is the holder of the French trademark registration number 96656050, FRANCE INTER, registered on December 18, 1996, and of five other French trademark registrations containing the “France Inter” words, including French trademark registration number 3383423 (“france inter red and white logo), registered on October 3, 2005 (the “FRANCE INTER Trademarks”).
In addition, the Complainant registered the <franceinter.com> domain name on September 28, 1998 and seven other domain names, registered between 2000 and 2006. The Complainant communicates on the internet worldwide and offers services using “www.franceinter.com” as its main website.
The disputed domain name was created on November 2, 2009.
The Respondent created the domain name to which resolves a website offering videos for free to Internet visitors, using advertising paid services.
5. Parties’ Contentions
(i) The Complainant submits that the disputed domain name <franceinter.tv> reproduces the France Inter Trademarks and is identical or confusingly similar to the FRANCE INTER Trademarks.
(ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name as the Respondent is not affiliated with or authorized by the Complainant and has no relation to the Complainant’s business, and the Complainant does no business with and carries no activity for the Respondent.
(iii) The FRANCE INTER brand is well known in Europe, especially in France where the Respondent lives, thus the Respondent should have been aware of the Complainant and of its FRANCE INTER Trademarks when he registered the disputed domain name.
(iv) By registering the disputed domain name, the Respondent intended to take advantage of the Complainant’s notoriety and to create confusion for Internet users, and the Respondent’s conduct amounts to a registration and use of the disputed domain name in bad faith.
(v) The Complainant requests that the disputed domain name be transferred to the Complainant.
(i) The Respondent submits that the disputed domain name <franceinter.tv> is not strictly identical or confusingly similar to the FRANCE INTER Trademarks because “France” and “inter" are two generic words in French. He further contends that “inter” means “interact”, and that when a space is indicated, it must be with a dash in a domain name. The Respondent adds that the logos are not the same.
(ii) The Respondent contends that he has rights and legitimate interests as the aim of his website is different from that of the Complainant’s website, and that the Complainant is not a TV channel.
(iii) The Respondent concedes FRANCE INTER is well known in France, but not abroad, and contends that he registered the disputed domain name in good faith.
(iv) The Respondent requests that the disputed domain name stays registered by him and not be transferred to the Complainant.
6. Discussion and Findings
6.1 Procedural aspects
Paragraph 10(a) of the Rules gives the Panel broad discretion to conduct the proceedings and the Panel must ensure that the proceedings take place “with due expedition”.
Accordingly, in the interest of fairness and of deciding the case on the basis of the most complete available record, the Panel has undertaken some limited factual research into matters of public record insofar as it felt it needed the results of such research to reach its decision. See also the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 4.5.
The Panel thus ascertained that a red and white logo, with the words “france inter” in the same font as in French trademark registration number 3383423, currently appears on top of the homepage of the website to which the disputed domain name resolves.
6.2 With respect to the requirements of paragraph 4(a) of the Policy
A. Identical or Confusingly Similar
In comparing the FRANCE INTER Trademarks to the disputed domain name, it is evident that the latter, <franceinter.tv>, wholly incorporates the words “france” and “inter”, followed by the top level domain <.tv>, which is the country code top-level domain designated for “Tuvalu” The addition of generic terms does not ordinarily serve to distinguish a domain name from registered marks. See Banconsumer Service, Inc. v. Mary Langthorne, Financial Advisor, WIPO Case No. D2001-1367; Royal Bank of Canada v. RBC Bank, WIPO Case No. D2002-0672; and Allianz AG v. Marian Dinu, WIPO Case No. D2006-0318.
The Panel finds that the disputed domain name is confusingly similar to the FRANCE INTER Trademarks, by incorporating in their entirety the words “france” and “inter”.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often impossible task of proving a negative proposition, requiring information that is primarily if not exclusively within the knowledge of the respondent. Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once the complainant has made a prima facie showing (as the Panel believes it has made in this case). See Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270 and Croatia Airlines d.d. v. Modern Empire Internet Ltd, WIPO Case No. D2003-0455.
As previously noted, the Respondent did submit a Response, and offered as reason for selecting the disputed domain name the fact that it had not been registered by the Complainant, which could have registered it prior to the Respondent.
The website associated with the disputed domain name is active, but the Respondent did not provide information on his rights or legitimate interests in the disputed domain name.
The Respondent argued that he did not register the disputed domain name to make a business with it, or to sell it to anyone, but in this Panel’s view, the Respondent did not come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the disputed domain name.
The question which the Panel must therefore examine is whether the Respondent is making a fair use of the disputed domain name, in relation with a bona fide offering of goods and services. The Panel finds that by his own admission, the Respondent is making a commercial use of the website to which the disputed domain name resolves.
Under these circumstances, the Panel is satisfied that the Complainant has established the second requirement of paragraph 4(a)(ii) of the Policy and that the Respondent has no rights or legitimate interest in the disputed domain name.
C. Registered and Used in Bad Faith
The Respondent fails to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s argument that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering a domain name similar to the Complainant’s FRANCE INTER Trademarks. To the contrary, as noted above, the Respondent has admitted the FRANCE INTER brand is well known in France. The Panel notes that the Respondent’s website may divert Internet users from the active website associated with the Complainant’s website “www.franceinter.com”, which they would seek to access. This is evidence of bad faith in registration. See VeriSign Inc. v. Bin g Glu / G Design, WIPO Case No. D2007-0421.
It is established that the registration of a domain confusingly similar to a well known trademark by any entity that has no relationship to that mark may itself sufficient evidence of bad faith registration and use. See Pfizer Inc. v. NA, WIPO Case No. D2005-0072; AT&T Corp. v. John Zuccarini d/b/a Music Wave and the Domain Name RaveClub Berlin, WIPO Case No. D2002-0440; America Online, Inc. v. Anson Chan, WIPO Case No. D2001-0004; Veuve Clicquot Ponsardin v. The Polygenix Group Co., WIPO Case No. D2000-0163; Research in Motion Limited v. Dustin Picov, WIPO Case No. D2001-0492. The Panel finds in this case that the Respondent has no relationship to the FRANCE INTER Trademarks.
Furthermore, the Panel accepts the Complainant’s submission that at the time the disputed domain name was registered, the notoriety of the FRANCE INTER brand, coupled with its trademark registration in France, where the Respondent lives, support an imputation of constructive knowledge by the Respondent of the Complainant’s trademark rights at the time of the registration of the disputed domain name. See Myer Stores Limited v. Mr. David John Singh, WIPO Case No. D2001-0763; Barney’s Inc. v. BNY Bulletin Board, WIPO Case No. D2000-0059; Kate Spade, L.L.C. v. Darmstadter Designs, WIPO Case No. D2001-1384 citing Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028.
In addition, the reproduction by the Respondent of the Complainant’s red and white logo on the homepage of the website to which the disputed domain name resolves is strongly indicative that the Respondent had knowledge of the Complainant’s trademark rights.
The Panel concludes in these circumstances that the Respondent’s registration and use of the disputed domain name indicate bad faith and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case.
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 <franceinter.tv> be transferred to the Complainant.
Dated: November 2, 2011