WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
CAE Participations v. Daphne Moyer, Multimedia Connect
Case No. D2013-1078
1. The Parties
The Complainant is CAE Participations of Wissous, France, represented by SCP August & Debouzy, France.
The Respondent is Daphne Moyer, Multimedia Connect of Paris, France.
2. The Domain Name and Registrar
The disputed domain name <multimedia-connect-fr.com> is registered with Spot Domain LLC dba Domainsite.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2013. On June 14, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 14, 2013, the Registrar 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 June 24, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was July 14, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 16, 2013.
The Center appointed Martine Dehaut as the sole panelist in this matter on August 2, 2013. 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, the French company CAE Participations is the holding company of a group of companies specialized and renown, according to the Complainant’s contentions, for providing high speed network solutions, audio and video equipment and electric apparatus. The French subsidiary is conducting such activities under the firm name “Multimedia Connect” as evidenced by the certificate of incorporation of this company with the French Trade Registry submitted by the Complainant.
The Complainant is the registered owner of Community Trademarks consisting notably of the sign “multimedia connect” No. 010036481 and “multimedia connect” No. 007477268 filed for electronic devices and data transmission and recording devices. The Complainant is using these trademarks for the said products, as shown in the catalogues displayed on the Complainant’s website.
The Complainant also owns domain names consisting of the sign “multimedia-connect” as follows:
The disputed domain name <multimedia-connect-fr.com> was created on November 13, 2012.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical to the here-above listed Community Trademarks in which it has rights and lead to confusion with, from a visual, aural and intellectual point of view. The mere addition of the element “-fr” is of no influence as it has no distinctive power and is only descriptive. On the contrary, from an intellectual stand point, it gives the impression that the disputed domain name corresponds to the official French website for the products branded “multimedia connect” and that it is linked to the Complainant’s Community Trademarks.
The Complainant states that the disputed domain name is also identical to the Complainant’s domain names cited above.
The Complainant further asserts that no trademark license or authorization have been granted to the Respondent.
Besides, the Complainant has conducted a prior rights search which evidences that the Respondent does not own any trademark corresponding to the disputed domain name. Consequently, the Complainant considers that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
Finally the Complainant argues that the disputed domain name was registered and is being used in bad faith by the Respondent for committing serious and harmful acts of deception and of phishing. In this connection,
the Complainant submits that the Respondent, Mrs Daphne Moyer is sending fraudulent quotation requests from email addresses attached to the disputed domain name. Moreover it is submitted that the Respondent, allegedly named Mrs Daphne Moyer claims to be the Purchasing Manager of Multimedia Connect, though there is no employee named Daphne Moyer at Multimedia Connect. Furthermore, it is observed that the Respondent is using the former postal address of Multimedia Connect and that all the contact details of the WhoIs of the disputed domain name are false.
The fact that the disputed domain name be used with a page parking website is pointed out by the Complainant as further circumstance of the bad faith of the Respondent.
Considering the foregoing, the Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the policy, the Complainant must prove each of the following three elements to obtain either the cancellation or the transfer of the disputed domain name:
(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 has submitted certificates of the Community Trademarks in which it has rights. These trademarks consist of verbal and figurative elements. MULTIMEDIA CONNECT appears clearly as a distinctive and dominant part of the Community Trademark No. 007477268. These two trademarks appear to be used in relation with wires, electronic devices and data transmission and recording devices as displayed in the catalog of products branded “multimedia connect” available on the Complainant’s website. The Panel has further considered the registration of the domain names owned by the Complainant.
In view of this evidence, the Panel takes the view that the disputed domain name is confusingly similar to the Complainant’s trademarks. It reproduces in its entirety the verbal element “multimedia-connect”. The adding of the letters “-fr” is of no incidence as to the finding of similarity as it is merely a descriptive sign without any distinctivity. As set forth in the decision Bayerische Motoren Werke AG v. DLR, WIPO Case No. D2001-1231. Along the same lines, the Panel considers that the disputed domain name is quite identical or at least similar to the Complainant’s domain names.
The Panel is therefore of the opinion that the conditions set forth in paragraph 4(a)(i) of the Policy are satisfied.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a respondent to demonstrate that it has rights to, or legitimate interests in, a disputed domain name. These are:
(i) Before any notice to [the respondent] of the dispute, use by [the respondent] 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; or
(ii) Where [the respondent] (as an individual, business, or other organization) [has] been commonly known by the disputed domain name, even if [the respondent has] acquired no trademark or service mark rights; or
(iii) Where [the respondent is] making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
In the present case, the Complainant has justified having conducted a prior rights search which did not reveal any trademark application or registration corresponding to the disputed domain name. The Panel further notes that the Complainant has not granted any license nor given any authorization to the Respondent for registering and using the disputed domain name.
Moreover, as it has been duly demonstrated by the Complainant, the Respondent has not used the disputed domain name in connection with a bona fide offering of goods and services. On the contrary, it results from the evidence submitted by the Complainant that the Respondent is usurping the identity of the Complainant for conducting seemingly illegal activities detrimental to the company CAE Participations and its subsidiaries, and leading the Complainant to file a criminal complaint before the Prosecutor of Paris in charge of cybercrimes.
Having duly considered the Complainant’s argumentation and the evidence it submitted, the Panel is convinced that the Respondent does not have rights or legitimate interests in the disputed domain name. The Respondent having not filed any reply to the contentions of the Complainant, the Panel finds that she has no relevant and contrary indications likely to demonstrate rights or legitimate interests to the disputed domain name.
Indeed, the consensus view of UDRP panels on the onus of proof under paragraph 4(a)(ii) of the Policy is that: “a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once, such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complaint is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP”. See paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
Considering the foregoing, the Panel considers that the Complainant satisfies the said requirements.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists a number of circumstances which, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith. These are:
(i) circumstances indicating that [a respondent has] registered or acquired a disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name to the Complainant or to a competitor of the Complainant, for valuable consideration in excess of [the respondent’s] documented out-of-pocket costs directly related to the disputed domain name; or
(ii) [the respondent has] registered the disputed domain name in order to prevent the Complainant from reflecting the Complainant’s trademark or service mark in a corresponding domain name, provided that [the respondent has] engaged in a pattern of such conduct; or
(iii) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.
The Panel considers that the evidence submitted by the Complainant undoubtedly demonstrates the registration and the use of the disputed domain name in bad faith.
First, as regards the registration, the Panel notes that all the contact details mentioned in the WhoIs are false. Indeed, the Registrant, the Administrative contact as well as the Technical contact are identified as Multimedia Connect, Daphne Maurier. Yet, the Complainant asserts that it has not registered the disputed domain name. Mrs Daphne Maurier is not an employee of the Complainant. This person is unknown to the Complainant.
Besides, it is to be noted that the address given by the Respondent is false. It corresponds to the address of the United States of America Embassy. The telephone number corresponds to that of an individual who contacted the Complainant to complain as to the numerous telephone calls she receives day and night.
Turning now to the use of the disputed domain name, it results clearly from the file submitted by the Complainant that it is used fraudulently for committing acts of deception and phishing. Indeed, the Respondent sent quotation inquiries and product orders to third parties, using for this purpose the company name of the Complainant and claiming to be its Purchasing Manager.
Besides, at the time the Complaint was filed, the disputed domain name apparently resolved to a parking page.
Considering all these circumstances, the Panel is convinced that the disputed domain name has been registered and is being used in bad faith (see Bayerische Motoren Werke AG v. bmwrider llc, WIPO Case No. D2008-0610),
Accordingly, the Panel considers the requirement set forth in the paragraph 4(b) of the Policy as satisfied.
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 <multimedia-connect-fr.com> be transferred to the Complainant.
Date: August 14, 2013