WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Areva v. N/A
Case No. D2008-0537
1. The Parties
The Complainant is Areva, Paris, France, represented by Cabinet Dreyfus & Associés, France.
The Respondent is N/A, Laredo, Texas, United States of America.
2. The Domain Name and Registrar
The disputed domain name <arevapower.com> is registered with Tucows.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 8, 2008. On April 9, 2008, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On April 9, 2008, Tucows 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”), 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 April 15, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 5, 2008.
On May 7, 2008, the Center forwarded to Complainant and Respondent a Notification of Respondent Default.
The Center appointed Desmond J. Ryan as the sole panelist in this matter on May 19, 2008. 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.
In response to the Center’s Notification of Respondent Default the Center received, on May 15, 2008 an email reading:
“I just received this email and I want to respond to this dispute. What is my next course of action.
John Talus was the Administrative Contact for the domain name in November 2007.
In reply the Center advised that as the Response was out of time a late Response could only be admitted at the discretion of the Panel. On May 16, 2008, a purported Response was filed, signed “Thomas Fischer”. It attached certificates of incorporation of a company called Areva Corpn and a letter to that company from Areva Enterprises Inc. There was no evidence of any connection between that company and Respondent, nor of the capacity in which Mr. Fischer signed the purported Response.
The Policy and the Rules lay down strict procedures and time limits for the actions of the parties, the Center and the Panel. The time for filing Response is one of those strict limits. Nevertheless, paragraph 5(d) and , paragraph 10(c) allows the Panel to extend the time, in exceptional circumstances. There is therefore a heavy onus on the person seeking to file late to show good reason why the action, in this case the Response, could not be filed on time – see Fashiontv.com GmbH v. Mr. Chris Olic, WIPO Case No. D2005-0994.
In this case, all we have from the Respondent by way of reason for not filing on time is an email, in reply to the Center’s Notification of Respondent Default, stating “I just received this email …”. No further reason is given and no reference is made to the original transmissions of the Complaint to the Respondent a month earlier. The electronic transmission of the Complaint by the Center on April 15, 2008, was not “bounced” and the UPS delivery trace of the hard copy shows it was delivered to Respondent’s address at 10.40 am on April 17, 2008.
The Panel is satisfied that the Complaint was duly served on Respondent. No exceptional circumstances have been shown. The late filed Response is not admitted.
4. Factual Background
The domain name was created on November 16, 2007.
Complainant is commonly known under the name Areva. It is a French conglomerate formed in September 2001 by the merger of two other French companies. It is 90% state owned and is one of the world’s largest companies in the production and distribution of nuclear energy. It has been involved in the production and distribution of nuclear power throughout Europe and the United States, it conducts uranium mining activities in Canada and Africa and is constructing nuclear plants in China and elsewhere. It has manufacturing facilities in 41 countries and a sales network in more than 100. By June 2007 it had constructed over 100 nuclear power plants worldwide.
Complainant is the proprietor of a number of trademark registrations worldwide, including US registration 76346463 filed December 7, 2001 and registered February 28, 2006, covering a wide range of goods and services relating to energy production and distribution and US registration 3211504 filed July 16, 2004 and registered February 20, 2007. Complainant is also the owner of international trademark registration 839880 filed July 16, 2004. It is also the owner of the domain name <areva.com> created on April 13, 1998, and corresponding domain names registered in the .us, .net, .info, .org, .be, .fr, .com.mx, .biz, .es, .it, .pt, .id, and .hu domains.
On November 28, 2007, two weeks after the disputed domain name was registered, Complainant sent a letter of demand to Respondent at its then New Jersey address. Respondent replied through its attorney Frank LoBosco Esq, seeking further information which was provided by Complainant and a further reply was received from Respondent’s attorney on January 18, 2008 stating that he would get back in touch with Complainant. Complainant states that no further reply was received.
Complainant monitored the “Whois” for Respondent on three occasions between November 28, 2007 and March 3, 2008. On each occasion the “Whois” had a different administrative contact for the domain name successively, John Talus, Helmut Fuerstner and Administrative Domain, and the address of the Respondent was, respectively, Bridgewater New Jersey, Ewing New Jersey, and Laredo Texas.
The domain name resolves to a blank page.
There is no evidence of the true identity of the Respondent.
5. Parties’ Contentions
Complainant contends that the domain name is identical or confusingly similar to its registered US and International trademarks comprising the word “Areva” and that the addition of the generic term “power” not only fails to distinguish the domain name from Complainant’s trademarks but in fact, having regard to the areas of operation of Complainant, actually increases the risk of confusion. Complainant cites several prior Panel decisions including Microsoft Corporation v. S.L. Mediaweb, WIPO Case No. D2003-0538.
Complainant submits that Respondent has no rights or legitimate interest in respect of the domain name. It states that Respondent is not in any way affiliated with Complainant and has not been authorized by Complainant to use its trademark. Complainant says Respondent is not known by the name Areva or Areva Power, has never used those terms and further, that Respondent’s legal adviser never asserted any such right or interest in correspondence with the Complainant.
Complainant contends that Respondent’s sole reason to choose the domain name was to profit from the reputation of Complainant in its trademark, and/or, to tarnish the reputation of Complainant. Complainant says that at the time of registration of the domain name, Respondent must have known of Complainant’s trademark and of the substantial reputation of Complainant as an operator in the nuclear power field in the United States and elsewhere.
The Complainant cites the decision of the Panel in its earlier case Societe Des Participations du Commissariat A L’Energie Atomique v. David Morton, WIPO Case No. D2007-0679. Complainant contends therefore that Respondent must have been aware of Complaint and its rights in the trademark “Areva” at the time of registration of the domain name.
Complainant further contends that the only reason why Respondent would register a domain name which included Complainant’s famous trademark must be either to sell the domain name to Complainant or to use it in such a way as to attract, for commercial purposes, users to a website at the domain name by creating confusion with Complainant. Complainant contends also that the absence of an active website at the domain name shows use of the domain name by “passive holding”, as in the case of Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. Complainant points to other elements evidencing use in bad faith including Respondent’s several changes of address and the fact that White Pages searches have failed to reveal any person named John Talus or any business named “Administrator Domain”. Complainant contends this is evidence that Respondent is engaging in cyber flight.
For the reasons set out above, the Response was not admitted.
6. Discussion and Findings
A. Identical or Confusingly Similar
The evidence produced by Complainant shows that Complainant is the owner of European and US trademark registrations comprising the word “Areva” dating well prior to the registration of the domain name and covering a wide range of goods and services related to the production and distribution of power. In addition, Complainant has shown it has an extensive reputation worldwide, including in the US, of its AREVA name and trademark.
The domain name consists of the word “Areva” plus the word “Power”, a word directly describing the goods and services traded in by Complainant. The Panel accepts Complainant’s submission that the addition of the word “Power” accentuates the likelihood of confusion of the domain name with Complainant.
The Panel therefore finds that the domain name is confusingly similar to a trademark in which Complainant has rights.
B. Rights or Legitimate Interests
Complainant has established a prima facie showing that Respondent has no rights or legitimate interests in the domain name. Complainant, having established a prima facie showing in this respect, the burden of rebuttal reverts to Respondent.
Respondent has failed to meet that burden, and accordingly the Panel finds that Respondent has no rights or legitimate interests in the domain name.
C. Registered and Used in Bad Faith
Complainant has established that not only is its trademark registered in Europe and the US, but also that it was well and widely known in the power industry in the US and elsewhere well before the date of registration of the domain name.
The Panel therefore concludes that at the time of registration of the domain name, Respondent was, or ought to have been, aware of Complainant’s rights in its trademark and that the registration of the domain name was therefore in bad faith.
Having regard to the fact that the domain name takes the whole of Complainant’s mark and couples it with a word describing Complainant’s goods and services, it is difficult, without a compelling showing to the contrary, to conclude that Respondent’s use of the domain name can be anything other than for the purpose of either selling the domain name to Complainant, or directing traffic to a website at the domain name. The fact that this purpose has not yet been realized does not of itself negate a finding of bad faith use.
As was pointed out in Telstra Corporation Limited v. Nuclear Marshmallows, supra, one of the earliest most cited panel decisions, “passive holding” of a domain name in circumstances such as these, constitute use in bad faith, particularly where, as in this case, it is coupled with other indicators, such as the apparent concealment of the true identity of the domain name holder, the frequent changes of address of the registrant, and frequent changes of the administrative contact.
The Panel therefore finds that the domain name was registered and is 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 domain name <arevapower.com> be transferred to the Complainant.
Desmond J. Ryan AM
Dated: June 2, 2008