WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Fondation Raymond Devos v. Marchex Sales, LLC
Case No. D2015-0692
1. The Parties
The Complainant is Fondation Raymond Devos of Saint-Rémy-Lès-Chevreuse, France, represented by Fidal, France.
The Respondent is Marchex Sales, LLC of Las Vegas, Nevada, United States of America.
2. The Domain Name and Registrar
The disputed domain name <raymond-devos.com> (the “Domain Name”) is registered with eNom (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 16, 2015. On April 16, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day 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 April 27, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 17, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 18, 2015.
The Center appointed Ian Lowe as the sole panelist in this matter on June 1, 2015. 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 foundation that was established on June 11, 2007 and state approved by decree dated January 14, 2009. It is devoted to the memory of the famous humorist Raymond Devos. Raymond Devos was a stand-up comedian born on November 9, 1922 in Belgium who died on June 15, 2006 in Saint-Rémy-Lès-Chevreuse in France. He is famous for his puns, his mime qualities and surreal humor. During his career, which started after World War II, Raymond Devos performed in ten theatre productions, nine movies, and twenty television shows as well as numerous live performances, which made him renowned and recognized by the French-speaking public. He received a number of awards and honors during his lifetime, both in Canada and in France. As a result of his success and fame, he became a celebrity and numerous articles have been published about him in the media and on the Internet.
Raymond Devos bequeathed his inheritance to the city of Saint-Rémy-Lès-Chevreuse, which in turn made a donation of all property given by him, including copyrights in his works, for the benefit of the Complainant, in order to perpetuate and spread Raymond Devos’s works.
The objectives of the Complainant are to protect the work of Raymond Devos, to spread his entire work in France and abroad and establish a museum in his memory in Saint-Rémy-Lès-Chevreuse, and in doing so to educate and support the French language.
The Domain Name was registered on December 11, 2002 and at the time of preparation of the Complaint resolved to the Archeo Domains auction website, accessible at “www.archeodomains.com”, which is a division of the Respondent specialized in the resale market for domain names. Until shortly before the filing of the Complaint, the Domain Name was offered for sale, but at the date of the Complaint the Domain Name was no longer offered for sale and instead the auction website stated “Oops! We’re sorry but this domain is no longer available”.
5. Parties’ Contentions
The Complainant contends that as a result of the widespread activities of Raymond Devos during his lifetime his name became a famous mark in the field of poetry, theatre, movies and one-man shows and generally in the field of entertainment. The Complainant (which has invested in it the author rights of Raymond Devos) has subsequently used the name intensively in commerce. As a consequence of the fame accruing to Raymond Devos, the Complainant maintains that he established rights in his name that amounts to an unregistered well-known trademark, now owned by the Complainant.
The Complainant accordingly contends that the Domain Name is identical to its RAYMOND DEVOS trademark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name the Complainant must prove that:
(i) the 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 Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition discusses (in paragraph 1.6) whether a complainant can show UDRP relevant rights in a personal name. It points to a number of decisions which have found that such a name may establish unregistered trademark rights for the purposes of the UDRP, provided the name in question is actually used in trade or commerce as an identifier of goods or services. In this case, the Panel is satisfied that as a result of the widespread activities of Raymond Devos, establishing him as a famous comic renowned for his sketches, intelligent shows, movies, novels and songs, he did establish such rights. The Complainant is the successor in interest to Raymond Devos and has, since its foundation, continued to use the name in trade and commerce and further reinforced relevant, unregistered trademark rights in the name.
Save for the inclusion of a hyphen, and ignoring the “.com” Top-Level Domain suffix for this purpose, the Domain Name is identical to the RAYMOND DEVOS mark. Accordingly, the Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in respect of the Domain Name. Shortly before the filing of the Complaint, the Domain Name resolved to a website operated by a division of the Complainant dedicated to the sale of domain names which offered the Domain Name for sale. The Panel considers that the Domain Name comprises the distinctive name of a comic, well-known in French-speaking countries, such that it is very difficult to conceive what rights or legitimate interests the Respondent could have in the name. There is no suggestion of the Respondent making a bona fide offering of goods or services by reference to the Domain Name
The Respondent has chosen not to respond to the Complaint and has not, therefore, offered any explanation as to what rights or legitimate interests it might have in respect of the Domain Name. It has not, therefore, rebutted the Complainant’s prima facie case.
In the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
In the absence of any explanation from the Respondent, the Panel cannot conceive, either, of any good-faith reason for the Respondent registering the Domain Name. Although the Complainant was not established until a few years after the registration of the Domain Name, the Complainant is the successor in interest of Raymond Devos who, by the time of registration, had himself established a very substantial reputation and notoriety in his name as a result of his activities, particularly in French-speaking countries. The overwhelming inference is that the Respondent had him in mind when it registered the Domain Name and that it did so with a view to commercial gain, either by selling the Domain Name for a sum significantly in excess of registration costs or in other ways.
The Domain Name resolving to a website dedicated to the commercial exportation of domain names supports a finding of bad faith use. To the extent that the Respondent’s use of the Domain Name could be said to be passive, that is not sufficient, in appropriate circumstances, to avoid a finding of bad faith, as noted in paragraph 3.2 of the WIPO Overview 2.0, as well as in Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 and subsequent cases.
Accordingly, the Panel finds that the Domain Name was registered and is being 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 Domain Name <raymond-devos.com> be transferred to the Complainant.
Date: June 15, 2015