WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Veolia Environnement SA v. Domains By Proxy, LLC / I Broadhead
Case No. D2018-0600
1. The Parties
The Complainant is Veolia Environnement SA of Paris, France, internally represented.
The Respondents are Domains By Proxy, LLC of Scottsdale, Arizona, United States of America (“United States”) and I Broadhead of Hong Kong, China, self-represented.
2. The Domain Names and Registrar
The disputed domain names, <jesuisveolia.com> (the “First Domain Name”) and <notveolia.info> (the “Second Domain Name”) (together, the “Domain Names”), are registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 19, 2018. On March 19, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On March 20, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. On March 26, 2018, the Center received two email communications from the second above-named Respondent. The Center sent an email communication to the Complainant on March 28, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 30, 2018.
The Center verified that the Complaint together with the amended 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 formally notified the Respondents of the Complaint, and the proceedings commenced on April 3, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 23, 2018. The Center received email communications from the second of the above-named Respondents on April 18, 2018, and April 20, 2018. On April 24, 2018, the Center informed the Parties that it would proceed to panel appointment.
The Center appointed Tony Willoughby as the sole panelist in this matter on April 30, 2018. 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 amended Complaint referred to above was occasioned by the fact that the original Complaint was filed against a privacy service (the first of the above-named Respondents) in whose name the Domain Name was held at the date of filing of that Complaint. In response to the Center’s Request for Registrar Verification, the Registrar disclosed that the underlying registrant was the second of the above-named Respondents. The amended Complaint reflects that fact, but continues to direct the Complaint against both the above-named Respondents.
4. Factual Background
The Complainant is the holding company of the Veolia group of companies. The group’s business was founded over one hundred years ago. The group is primarily engaged in water supply, the treatment of water and waste and the preservation of energy resources.
The Complainant is the proprietor of numerous trade mark registrations for the name “Veolia”, including by way of example, European Union Trade Mark Registration No. 0910325 for VEOLIA (word) registered on March 10, 2006 for a wide range of goods and services in a multiplicity of classes.
The Complainant operates a website connected to its <veolia.com> domain name, which it registered on December 30, 2002.
The Domain Names were registered on November 20, 2015 and both are connected to parking pages operated by the Registrar. The page to which the First Domain Name is connected features ‘related links’ three of which refer to the Complainant. The page to which the Second Domain Name is connected features ‘related links’ unrelated to the Complainant.
On July 29, 2016 the Complainant emailed cease and desist letters to the first named Respondent seeking cancellation of the Domain Names. Following chasers, the second named Respondent replied on October 4, 2016 in the following terms: “Thank you for your unsolicited letter via DomainProxy. I confirm I am the owner of [the Domain Names]. Sincerely, Ivan Broadhead.”
5. Parties’ Contentions
The Complainant contends that both named Respondents are properly so-named, the second named Respondent being the person responsible for the registration and use of the Domain Names and the first named Respondent having facilitated the hiding of the second named Respondent by use of the privacy service.
The Complainant contends that the Domain Names are confusingly similar to its VEOLIA registered trade mark, that the Respondent has no rights or legitimate interests in respect of the Domain Names and that the Domain Names have been registered and are being used in bad faith.
No formal Response has been filed by either of the above-named Respondents. The second above-named Respondent’s response was submitted by way of emails to the Center dated March 26, 2018, April 18, 2018 and April 20, 2018. The Panel accepts those emails as the Response of the second-above-named Respondent.
For the reasons given in Section 6C below, the Panel finds the Complainant’s case against the first of the above-named Respondents to be mis-conceived. Henceforward in this decision the Panel uses the term “Respondent” to refer to the second of the above-named Respondents.
The Respondent’s emails of March 26, 2018 read as follows:
“Dear Sir or Madam
I understand that this domain in my ownership is under dispute. I have not been informed of how to
participate in the resolution process, which means that your methodology is clearly flawed.
I own this website as a journalist, on the basis of my investigation into criminal malfeasance and gross
sexual misconduct by a senior regional president of VEOLIA ENVIRONNEMENT, the company that no
doubt lodged this dispute with you.
My ownership of this site is justified under the Constitutional right to Freedom of Expression, and its
contents will ultimately be protected under the defense of Fair Comment.
Under no circumstances whatsoever does United States Trade Law supersede the United States
Constitution - a point that VEOLIA’s correspondence with you will no doubt have overlooked.
I therefore trust that you will inform VEOLIA that they cannot claim this website. I am not “sitting” on it
for material gain as they have no doubt alleged, and by definition of “NOT” being VEOLIA’s, there [sic] claim
Please feel welcome [Complainant’s representative] or whomsoever’s name appears on the papers submitted to you, of the contents of this message, and my contact details.
I am already dealing with the Company’s legal department in London, and once the site ultimately goes
live, I welcome any attempt by VEOLIA to sue me for defamation.
With thanks for your kind consideration and sincerely yours,
“Ps Please inform counsel for WIPO that, as confirmed by the attached email screenshots, in January 2017, I received via Domains by Proxy a written allegation that I was in breach of US trade law and allegedly cybersquatting www.notveolia.com and Jessuisveolia.com sent by legal counsel for VEOLIA
ENVIRONNEMENT, [Complainant’s representative].
Per the demands of that letter from [Complainant’s representative], I contacted VEOLIA via his email address that was provided (see second attached email screenshot - my other reply I can’t currently locate since I’m working in a refugee camp in North Africa right now and bandwidth is very low), to declare my ownership of the contested URLs, which, as stated in my correspondence to you this hour, is not under any circumstances owned by me for the purposes of cybersquatting or to make money, but to expose criminal malfeasance and gross sexual misconduct at VEOLIA ENVIRONNEMENT, in my capacity as an investigative journalist.
VEOLIA did not once, ever, have the courtesy to respond to my email - and I challenge them to prove as much.
I have no doubt that Counsel for WIPO will appreciate that in the light of the absolute absence of any response from VEOLIA that I identify myself per [Complainant’s representative]’s initial, unsolicited demand made of me - and since I fulfilled those demands to identify myself to their party, no matter the extent to which that statement by a FRENCH CORPORATION LIKE VEOLIA rides roughshod upon those rights enshrined in the FIRST AMENDMENT of the United States Constitution - it is entirely unconscionable that VEOLIA should be allowed to proceed directly to the WIPO Dispute Panel without once making contact with me upon my identifying myself to [Complainant’s representative].
As Counsel for WIPO will no doubt concur, due process as implied by VEOLIA’s own demands, would necessarily entail [Complainant’s representative] contacting me directly, per their original request for my identity and address - which it is patently obvious I voluntarily provided - in order that I might explain my ownership and hammer out some sort of agreement as regards ultimate ownership of this site, whether or not that obliged VEOLIA to reserve their right to sue me once the site ultimately goes live.
Given the resounding failure of VEOLIA to contact me directly to discuss this dispute, given VEOLIA’s complete disregard for those First Amendment Rights enshrined by the Constitution of The United States of America, and in light of my compliance with VEOLIA’s demand for my contact details and my demonstrable
willingness to engage in a dialogue with that party, I would suggest to you that the involvement of WIPO is premature in this case, and VEOLIA’s petition should therefore be dismissed until such time as dialogue has taken place between the disputing parties.”
The main thrust of the Respondent’s emails to the Center of April 18, 2018 and April 20, 2018 is to query whether the Complainant’s representative is authorized to act on behalf of the Complainant, the basis for the query being the Complainant’s apparent ignorance of his superior’s dealings with the Respondent. Additionally, the Respondent is outraged at what he regards as being the shameful nature of the Complainant’s arguments as expressed in the correspondence and in the Complaint.
The Respondent complains that he never received a reply to his email to the Complainant of October 4, 2016 and nobody ever asked him for his plans for the websites to be connected to the Domain Names.
The Respondent’s email of April 18, 2018 opens: “Without prejudice and further to the amended submission by [Complainant’s representative], I would suggest this gentleman speak with his superior, Legal Counsel for VEOLIA GROUP Mr [H.], before we proceed any further in this Administrative Proceeding. As the most senior legal officer at VEOLIA, and [Complainant’s representative]’s boss, Mr [H.] is well aware of my ownership of those contested URLs, and that I am entirely prepared - where morality prevails - to transfer ownership of them to the Company. In this regard, Mr [H.] has been dignified in recognising the underlying reasons that precipitated their purchase and intended use, describing my concerns as “extremely serious”, and committing to their investigation.”
The Panel interprets the Respondent’s Response to be a denial of the Complainant’s allegations and a contention that the Respondent is planning to use the Domain Names for a noncommercial purpose, namely to exercise his right of free speech in relation to the “criminal malfeasance and gross sexual misconduct” referred to in his email of March 26, 2018 quoted above.
6. Discussion and Findings
A. Preliminary Issue
The Respondent queries whether the individual at the Complainant, who is cited in the Complaint as being the Complainant’s point of contact, is in fact authorized by the Complainant to represent the Complainant in this case.
The matter of the Complainant’s representation was a matter for consideration by the Panel because the Complaint was filed by a third party organization, which one might have been expected to have been identified as the Complainant’s representative, but Section II A of the Complaint states “there is no authorized representative in the present complaint”.
The Panel in any event notes that representatives of the Complainant’s organization were copied on the Complaint submission and listed as Complainant’s contacts for the administrative proceeding. The fact that the Complaint was signed by the individual recognized by the Respondent as being the “the most senior legal adviser of [the Complainant]” reinforces the Panel’s view in this regard.
The Panel concludes that the organization which filed the Complaint did so on behalf of the Complainant and that the person identified as the Complainant’s contact is an employee of the Complainant and has all the appropriate authority.
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Names, the Complainant must prove each of the following, namely that:
(i) The Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) The Domain Names have been registered and are being used in bad faith.
C. The Complaint against Domains By Proxy, LLC
The Complainant has maintained its complaint against Domains By Proxy, LLC solely on the basis that it provided the Respondent with a privacy service, thereby enabling the Respondent to conceal his identity.
There is nothing inherently objectionable about the use of privacy services, although their use can sometimes contribute to findings of bad faith registration and use under the Policy - usually only where “a respondent employs a privacy or proxy service merely to avoid being notified of a UDRP proceeding filed against it” (see Section 3.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). Even in such circumstances, it is unusual for the complaint against the privacy service to be maintained unless the identity of the underlying registrant remains undisclosed.
In this case Domains By Proxy, LLC notified the Respondent on receipt of the Complainant’s cease and desist letter of July 29, 2016 and the Respondent responded to the Complainant on October 4, 2016 identifying himself as the underlying registrant of the Domain Names. While there was a delay of two months, that was nothing to the delay which followed. It was another seventeen months before this Complaint was filed and by then the Complainant knew the identity of the underlying registrant.
There is no basis for the Complaint against Domains By Proxy, LLC to have been maintained and the Panel dismisses it.
D. Identical or Confusingly Similar
The Complainant has established that it has trade mark rights in respect of the mark VEOLIA. Both the Domain Names feature that mark in its entirety.
“It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trade mark and the disputed domain name.
This test typically involves a side-by-side comparison of the domain name and the textual components of the relevant trade mark to assess whether the mark is recognizable within the disputed domain name. (This may also include recognizability by technological means such as search engine algorithms.) In some cases, such assessment may also entail a more holistic aural or phonetic comparison of the complainant’s trade mark and the disputed domain name to ascertain confusing similarity.
While each case is judged on its own merits, in cases where a domain name incorporates the entirety of a trade mark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.”
Adopting that approach, the Panel finds that the Domain Names are confusingly similar to the Complainant’s VEOLIA trade mark.
E. Rights or Legitimate Interests
The Respondent’s contention is that he did not register the Domain Names “for the purposes of cybersquatting or to make money, but to expose criminal malfeasance and gross sexual misconduct at VEOLIA ENVIRONNEMENT, in [his] capacity as an investigative journalist.”
Paragraph 4(c) of the Policy insofar as it is relevant to the Respondent’s Response to the Complaint reads:
“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.”
This raises two points. First, the Respondent is not making any use of the Domain Names. Secondly, the Respondent has not produced any evidence to demonstrate that that is his intention. The Domain Names are connected to inactive parking pages of the Registrar and nearly two and a half years have transpired since registration of the Domain Names.
The Respondent says that he is or has been in touch with the Complainant’s head lawyer in London:
“As the most senior legal officer at VEOLIA, and [Complainant’s representative]’s boss, Mr [H.] is well aware of my ownership of those contested URLs, and that I am entirely prepared - where morality prevails - to transfer ownership of them to the Company. In this regard, Mr [H.] has been dignified in recognizing the underlying reasons that precipitated their purchase and intended use, describing my concerns as “extremely serious”, and committing to their investigation.”
Nothing to substantiate those dealings with Mr [H.] (or anybody else) has been produced to the Panel and the Respondent does not appear to have noticed that it was Mr [H.] who signed both the Complaint and the amended Complaint.
In effect the Panel is being asked to take the Respondent’s word for it in circumstances where the very person whom the Respondent cites as being sympathetic to his position is the person who signed the Complaint.
In his emails to the Center the Respondent provides details of his website, which the Panel has visited. The Respondent appears to be, as he claims, an acknowledged investigative journalist.
Notwithstanding the paucity of the evidence filed by the Respondent and notwithstanding the anomaly referred to above, the Panel is prepared to accept that the Respondent registered the Domain Names to exercise his claimed right of free speech.
As to the fact that the Respondent is not currently making any active use of the Domain Names as required by paragraph 4(c)(iii) of the Policy, the Panel observes that paragraph 4(c) of the Policy is a non-exhaustive list of circumstances. The Panel is ready to accept that a genuine intention to use a domain name for a purpose covered by paragraph 4(c)(iii) of the Policy may be sufficient to give rise to a right or legitimate interest in respect of the domain name in question.
The Panel deals with the Domain Names separately.
The First Domain Name (<jesuisveolia.com>)
While for some Internet users the prefix “je suis” will be seen as an allusion to the French free speech journalists massacred in Paris in 2015 (“Je Suis Charlie”), for many it will be either meaningless or a representation that it is a domain name of the Complainant, “je suis” meaning “I am” in French. For those who do not appreciate the allusion, which in the view of the Panel is likely to be a substantial number of people, the First Domain Name constitutes impersonation (self-evidently, the Respondent is not the Complainant) and thus is not an appropriate domain name for a free speech criticism site.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the First Domain Name.
The Second Domain Name (<notveolia.com>)
In this case, in the view of the Panel, the prefix “not” is likely to be understood as a negative term and indicative of a domain name, which is not owned or authorized by the Complainant, but likely to be a criticism site devoted to the Complainant. Accordingly, on that basis the Panel finds that the Second Domain Name is potentially a fair name to adopt for a site critical of the Complainant.
Although not conclusive, the Panel observes that the related links on the webpage connected to the First Domain Name include links associated with the Complainant whereas the algorithm designed to detect such associations did not apparently detect the reference to the Complainant in the context of the Second Domain Name (see Section 4 above).
The only issue for the Panel under this element of the Policy in relation to the Second Domain Name is as to whether or not the Respondent’s word is to be trusted and whether on the balance of probablilities the Second Domain Name is to be used for the purpose claimed for it by the Respondent. The Panel finds on the balance of probabilities that the Respondent has a legitimate interest in respect of the Second Domain Name.
The Complaint in respect of the Second Domain Name is denied.
F. Registered and Used in Bad Faith
In the view of the Panel, for the reasons expressed in E above, the First Domain Name is likely to be seen by many as a representation that the First Domain Name is a domain name of the Complainant, in other words a false representation.
While it was almost certainly not the Respondent’s intention that the First Domain Name should constitute a false representation, there has to be an element of objectivity in assessing bad faith registration and use under this element of the Policy. This is something that the Respondent should have had in mind when registering his domain names. As borne out by the nature of the related links appearing on the webpages of the websites connected to the Domain Names, the association is made with the First Domain Name, but not with the Second Domain Name.
While paragraph 4(a)(iii) of the Policy calls for bad faith use and while it is the case that the Respondent is making no active use of the First Domain Name, the Panel accepts (as he has accepted in respect of the Second Domain Name) that the Respondent has active plans to make use of it. In the view of the Panel no unauthorized use of that domain name can constitute a good faith use.
The Panel finds that the First Domain Name has been registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the First Domain Name, <jesuisveolia.com> be transferred to the Complainant, while the Complaint in respect of the Second Domain Name, <notveolia.info>, is denied.
Date: May 10, 2018