WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Compagnie Générale des Etablissements Michelin v. Milen Radumilo
Case No. D2016-2636
1. The Parties
The Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France.
The Respondent is Milen Radumilo of Bucharest, Romania.
2. The Domain Name and Registrar
The disputed domain name <michelinroute.com> is registered with Tucows Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 29, 2016. On December 29, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed 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 and 4, the Center attempted formally to notify the Respondent of the Complaint on January 6, 2017, by (a) transmitting the Complaint and Annexes, in four separate emails, to the email address set forth in the contact details and to “email@example.com”, (b) transmitting notice of the Complaint and Annexes by telefax, to the telefax number set forth in the contact details, and (c) transmitting the Complaint and Annexes by post/courier to the street address set forth in the contact details. The emails to the second address cited above were first delayed, then returned as undeliverable. Telefax transmission failed because of “Problem detected with the line or connection.” The courier was unable to deliver the notice of the Complaint, noting as the reason “The address on the airway bill is incomplete / wrong”.
In accordance with the Rules, paragraph 5, the due date for Response was January 26, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 27, 2017.
The Center appointed Richard G. Lyon as the sole panelist in this matter on February 2, 2017. The Panel finds that it was properly constituted. The Panel has submitted his 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 following facts are supported by evidence submitted with the Complaint.
The Complainant, headquartered in France, sells tires around the world. Its tire business dates to the nineteenth century. The Complainant is also known for travel guides that are sold in many countries, including Romania, the domicile of the Respondent. In that country, in addition to selling its products, the Complainant owns and operates three factories and employs several thousand people.
The Complainant holds many trademarks for MICHELIN around the world, including an international trademark dating from 1968 and a European trademark dated 2011. Its principal website is <michelin.com> and it also owns <michelin.ro>, the latter employing the country code Top-Level Domain (ccTLD) for Romania.
The Respondent registered the disputed domain name in August 2016. When the Panel entered the disputed domain name into his browser he was directed to a parking page with no substantive content. Annexes to the Complaint indicate that at one time the disputed domain name resolved to a website that included links to Complainant’s field of activities such as “Route Maps” and “Michelin Maps.”
The Complainant sent a cease-and-desist letter to the Respondent, using the address shown on the WhoIs data for the disputed domain name, but received no reply.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s well-known MICHELIN trademarks, that the Respondent lacks rights or legitimate interests in the disputed domain name, and that the Respondent registered and used the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Before addressing the merits the Panel must first consider whether in light of the possible failure to deliver the Complaint to the Respondent it has jurisdiction to decide this administrative proceeding.
Paragraph 2(a) of the Rules provides:
(a) When forwarding a complaint, including any annexes, electronically to the Respondent, it shall be the Provider’s responsibility to employ reasonably available means calculated to achieve actual notice to Respondent. Achieving actual notice, or employing the following measures to do so, shall discharge this responsibility:
(i) sending Written Notice of the complaint to all postal-mail and facsimile addresses (A) shown in the domain name’s registration data in Registrar’s Whois database for the registered domain-name holder, the technical contact, and the administrative contact and (B) supplied by Registrar to the Provider for the registration’s billing contact; and
(ii) sending the complaint, including any annexes, in electronic form by e-mail to:
(A) the e-mail addresses for those technical, administrative, and billing contacts;
(B) postmaster@<the contested domain name>; and
(C) if the domain name (or “www.” followed by the domain name) resolves to an active web page (other than a generic page the Provider concludes is maintained by a registrar or ISP for parking domain-names registered by multiple domain-name holders), any e- mail address shown or e-mail links on that web page;
(iii) sending the complaint, including any annexes, to any e-mail address the Respondent has notified the Provider it prefers and, to the extent practicable, to all other e-mail addresses provided to the Provider by Complainant under paragraph 3(b)(v).1
Following its customary practice, the Center complied strictly with this Rule. It dispatched a Written Notice to Respondent and simultaneously sent a copy by electronic mail and telefax to Respondent. In each case the Center used the information contained in the Registrar-furnished contact details and with email in compliance with clause (a)(ii)(B) above. Whether or not the email version sent to the address from the contact information succeeded, the Center did all that was required to “discharge [its] responsibility” under the Rule.2 The Panel therefore has jurisdiction.
B. Standard of Proof in this Default Case
The fact that the Respondent has defaulted does not automatically result in a decision in the Complainant’s favor or require the Panel to accept as true any of the factual allegations in the Complaint. Under the Policy and Rules the Complainant is still required to prove with competent evidence each of the elements of paragraph 4(a) of the Policy.
C. Identical or Confusingly Similar
The Complainant has shown that it holds trademarks, duly registered with national authorities, for MICHELIN. That is the dominant feature of the disputed domain name, which suffices to establish confusing similarity. Addition of “route”, a word suggestive of some of the Complainant’s products, adds to the likelihood of confusing similarity.
D. Rights or Legitimate Interests
The Complainant has never authorized the Respondent to use its MICHELIN marks and nothing in the record suggests that the Respondent has been known, commonly or otherwise, by any name that includes the word MICHELIN. Those facts make out the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, and shifts the burden of production to the Respondent to demonstrate the contrary. The Respondent has furnished nothing. The Complainant has therefore carried its evidentiary burden under paragraph 4(a)(ii) of the Policy.
E. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove by a preponderance of the evidence that the Respondent registered and used the disputed domain name in bad faith. Registration and use must be separately proven, though of course some evidence may bear on both elements.
The Complainant advances several grounds for finding bad faith. The basis for each is its allegation that “[i]t is implausible that Respondent was unaware of Complainant when the Respondent registered the disputed domain name.”
The Complainant argues that it and its marks carry worldwide recognition,3 and cites a number of UDRP decisions that recognize these facts. From this premise the Complainant goes on to assert (again citing cases) that “bad faith has already been found where a domain name is so obviously connected with a well-known trademark that its very use by someone with no connection to the trademark suggests opportunistic bad faith.” Policy precedent is not so straightforward, however; ordinarily both actual knowledge of the marks and a demonstrated intent to take advantage of their renown is required (targeting). WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, paragraph 3.4. This too is not a hard-and-fast rule, as panels have in appropriate circumstances fashioned nuanced exceptions, generally applying to individuals or entities that traffic in domain names for profit. The Respondent here is no stranger to the Internet or the UDRP and may fit the description of a domainer. The Complainant cites fourteen cases from the past two years in which the Respondent was haled before a UDRP panel and ordered to transfer a domain name,4 and includes evidence that the Respondent owns or has owned thousands of domain names.
As the Complainant further argues, in this case though there is a proven fact that establishes bad faith in both registration and use – that the website at the disputed domain name at one time included links to entities in the Complainant’s fields of activities, and that the full text of the disputed domain name itself suggests knowledge. From this evidence the Panel may – and does – infer actual knowledge and targeting. The Respondent’s conduct falls squarely within two of the examples of evidence of bad faith in paragraph 4(b) of the Policy: “by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [his] web site . . . by creating a likelihood of confusion with the [C]omplainant’s mark as to the source, sponsorship, affiliation, or endorsement of [his] web site or location” (paragraph 4(b)(iv)), and (in part by reason of his earlier conduct) “[he has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [he has] engaged in a pattern of such conduct” (paragraph 4(b)(ii)).
The Complainant has proven 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 disputed domain name <michelinroute.com> be transferred to the Complainant.
Richard G. Lyon
Date: February 7, 2017
1 Nothing on the web pages attached to the Complaint or found by the Center includes any additional email address, rendering this clause (iii) inapplicable to this case.
2 The Respondent has no one to blame but himself if he did not receive actual notice, as it was he who furnished the contact details to the Registrar when he registered the disputed domain name.
3 The Complainant supports this allegation with considerable evidence, including evidence of sales and manufacturing in the Respondent's home country.
4 As in this case, most of these decisions involved a domain name that incorporated a well-known retail brand.