WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Groupe France Mutuelle v. EntertainmentTELECOM.com
Case No. D2006-1164
1. The Parties
The Complainant is Groupe France Mutuelle, Paris, France, represented by Ms. Laure Debellu, France.
The Respondent is EntertainmentTELECOM.com, Corporate Site, Panama City, Panama, represented by Michel Van de Morten, United Sates of America.
2. The Domain Name and Registrar
The disputed domain name <groupefrancemutuelle.com> is registered with Communigal Communications Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 11, 2006. On September 12, 2006, the Center transmitted by email to Communigal Communications Ltd. a request for registrar verification in connection with the domain name at issue. On September 13, 2006, Communigal Communications Ltd. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 21, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 11, 2006. The Response was filed with the Center on October 10, 2006.
On October 13, 2006, Complainant submitted to the Center a document entitled “Complementary Information”. This information was supplied by Groupe France Mutuelle’s Legal Advisor. On October 17, 2006, the Center indicated that the Policy and Rules do not foresee further submissions after the Complaint but that the Panel could at its sole discretion decide to accept this further information.
The Center appointed Clive L. Elliott as the sole panelist in this matter on October 18, 2006. 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.
The Panel decides that it is appropriate to consider the first part of this “Complementary Information”, namely that relating to the identity and history of the Complainant and the manner in which it has used the disputed name. That is, so as to verify what is said in the Complaint. The Panel has not however considered the other information and submissions contained in this “Complementary Information”.
4. Factual Background
Complainant, Groupe France Mutuelle, has operated under that name since 1991, in relation to insurance services and health matters. The disputed domain name was registered in 2000 and Respondent has used it for a range of commercial activities since then. Complainant takes exception to this and seeks a transfer of the domain name.
5. Parties’ Contentions
Complainant asserts that one of its trademarks is Groupe France Mutuelle and that it has used it in all publicity, media communication and legal documents. Complainant states that this particular mark is used for insurance services and is linked with health, care and medical aspects and is used by its partners who are specialised in insurance and health matters.
In its “Complementary Information” Complainant states that it was first set up as a mutual benefit society in 1936, at that time being named la Société de Secours Mutuels Départementale (Departmental Society of Mutual Helps). It states that in the early 80’s it became la Mutuelle Nationale Complémentaire (National Complementary Mutual benefit society). Finally, in 1990 it adopted the name of Groupe France Mutuelle.
It states that it uses the abbreviation GFM but that its corporate name is Groupe France Mutuelle and that the Official Journal of the French Government (June 12, 2003 Nor SANS0321994A) and Yellow Pages refer to the name of Groupe France Mutuelle and that since 1990, the name of the Complainant has appeared on many occasions in insurance and economics magazines. Finally on this issue, it states that its slogans “Groupe France Mutuelle, une Mutuelle d’avance”, “Groupe France Mutuelle, la 1ère Mutuelle au service des seniors” are service marks, registered in the French trademark directory.
Complainant contends that Respondent has no legitimate interest in the disputed domain name. Rather, it states that Respondent has used the domain name to link to a hard core pornography site connected to “www.venustv.com” from which a person searching and clicking on “www.groupefrancemutuelle.com” is redirected. It states that the domain name now resolves to a phone sell site. It points out that neither of these sites have anything to do with health care.
It also points out that the Respondent is a foreign company with no French interests, whereas Complainant’s name identifies the company as a French company. In terms of bad faith Complainant asserts that Respondent sought to sell the domain name for an over-valued price and that this is indicative of bad faith.
Respondent asserts that “groupefrancemutuelle” is not a trademark and that after research in all classes into the French trademark directory it was not able to find any registrations. Instead, it states that after more research, it discovered that in fact the company is named GFM.
It states that Complainant is the owner of <gfm-mutuelle.com> and this is corresponding to its appellation in the Yellow Pages. It does however point out that Complainant is the owner of the domain name <groupefrancemutuelle.fr>.
Respondent points out that the name chosen by it would be understood as “Mutual Group France”. Mutual also means: directed by each toward the other or the others or having the same feelings one for the other, and the last definition must be characterised by intimacy. Respondent contends that the fact that pornographic services or a Mobile Portal Website is exploited on this site, doesn’t prove bad faith and has nothing to do with French insurance and pensions.
Respondent states that the allegations of offering to sell the disputed domain name at an inflated figure is incorrect in that it simply responded to an offer to purchase the disputed domain name and that there is nothing inappropriate about this.
Finally it argues that it is not troubling the public order by providing its services through the Net and using the domain name.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the domain name Complainant must prove that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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.
Having considered the Complaint, the Panel finds that all requirements of paragraph 4(a) of the Policy are met. The basis for reaching this view is set out below.
A. Identical or Confusingly Similar
The Complainant has operated in the insurance and health industry in France for a considerable number of years and it appears from the information provided and submissions made that it has used, in one manner or another, the name Groupe France Mutuelle. It is also apparent that the name has been used on a range of publicity, media communication and legal documents. It is also registered as a service mark incorporating the elements of the name/trademark.
The evidence supporting this position is not particularly compelling but based on the assertions made in the Complaint and “Complementary Information” the Panel is able to conclude that, on balance, the Complainant has used the Groupe France Mutuelle name since 1991 and that as a result of such use it has acquired legal rights in the aforesaid trademark/name. Relevantly, for present purposes, through such activities and through the additional registration of its service mark the Panel finds that it has acquired protectable rights pursuant to the Policy.
Groupe France Mutuelle in combination and in the same sequence. The suggestion by Respondent that the word “Mutual” is apt for use in relation to pornographic services and that the word “France” has a cache of its own in relation to identical or similar services is hardly convincing. The Panel finds that the disputed domain name is identical and/or confusingly similar to the trademark/name Groupe France Mutuelle.Accordingly, the Panel is satisfied that the first element of the Policy has been met.
B. Rights or Legitimate Interests
Given the use that Complainant has made use of the trademark/name Groupe France Mutuelle the question arises whether the Respondent has some right or interest recognized by the Policy. The question then arises whether the use of the disputed domain name to direct consumers to a porn site or alternatively to a mobile phone site is legitimate under the circumstances. That in turn entails assessing whether the particular goods or services are being offered in a bona fide manner in conjunction with the disputed domain name. It is difficult to accept that this is the case, particularly given the lack of connection between the component parts of the disputed domain name and the goods or services provided by the Respondent or its associates.
If, as the Respondent argues, the domain name would be understood by consumers to be “Mutual Group France”, it is not clear why the Respondent did not register this as its domain name, rather than adopting the exact same sequence as the Complainant. It is equally apparent that Respondent is not commonly known by the disputed domain name as contemplated under Paragraph 4(c)(ii).
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name as it has not used the disputed domain name in connection with any bona fide offering of goods or services as contemplated under Paragraph 4(c)(i) of the Policy.
As such it is found that this ground is made out.
C. Registered and Used in Bad Faith
Given the reputation and the goodwill in the trademark/name Groupe France, both when the disputed domain name was registered in 2000 and since, it is difficult to see how Respondent can claim to have registered and used the domain name in good faith. Once again, the Respondent’s purported explanation for its choice of the particular domain name is not accepted. Finally, it is found that Respondent is using the disputed domain name for commercial gain to misleadingly divert consumers and that this is likely to damage Complainant’s trademark/name and ultimately its good name and business...Rather than explaining why the disputed domain name is appropriate it suggests that it was registered in bad faith and has since been used for purposes which are equally indicative of bad faith.
It is thus found that this ground is made out.
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, <groupefrancemutuelle.com> be transferred to the Complainant.
Clive L. Elliott
Date: November 1, 2006