WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
SNCF Reseau v. Perfect Privacy, LLC / Henry Stout
Case No. D2018-1025
1. The Parties
The Complainant is SNCF Reseau of La Plaine Saint-Denis, France, represented by SCAN Avocats, France.
The Respondent is Perfect Privacy, LLC of Jacksonville, Florida, United States of America ("USA") / Henry Stout of Toronto, Canada.
2. The Domain Name and Registrar
The disputed domain name <sncf-reseaux.com> (the "Domain Name") is registered with Register.com (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 9, 2018, identifying the Respondent as Perfect Privacy, LLC. The Center sent its request for registrar verification to the Registrar on May 11, 2018. The Registrar replied on May 12, 2018, confirming that the Domain Name was registered through it, but stating that the current registrant is Henry Stout. The Registrar also confirmed that the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP") applies and that the Domain Name would remain locked during this proceeding. The Registrar provided the details held in respect of the Domain Name on its WhoIs database and noted that the expiration date is November 15, 2018.
The Center forwarded the registrant and contact information disclosed by the Registrar to the Complainant on May 14, 2018, and invited the Complainant to amend the Complaint. The Complainant filed an amended Complaint on May 14, 2018, identifying the Respondent as Henry Stout.
The Center verified that the amended Complaint satisfied the formal requirements of the 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 paragraphs 2 and 4 of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 22, 2018. In accordance with paragraph 5 of the Rules, the due date for Response was June 11, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 12, 2018.
The Center appointed Jonathan Turner as the sole panelist in this matter on June 19, 2018. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the UDRP, the Rules and the Supplemental Rules.
4. Factual Background
The Complainant operates the French railway network. It was formed in 2015 by the merger of three businesses operating the French railways. It is the registered proprietor of several marks consisting of the words "SNCF RESEAU". These include French trademark no. 4142866 registered on December 18, 2014 and European Union trademark no. 013604145 registered on May 13, 2015, pursuant to an application filed on December 23, 2014. The Complainant has also registered domain names with second level domains comprising "sncf-reseau" that are directed to pages of its website.
According to the Registrar's WhoIs data, the Domain Name was registered on November 15, 2017. The Domain Name has been directed to a web page displaying links to websites of the Complainant and others providing schedules and information about French railways.
5. Parties' Contentions
The Complainant submits that the Domain Name is confusingly similar to its registered mark, SNCF RESEAU, from which it differs only in the presence of a hyphen between the two elements, the addition of the letter "x" representing the plural, and the generic Top-Level Domain ("gTLD"), ".com".
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. According to the Complainant, the Respondent is not and never has been known under the Domain Name. The Complainant states that the Respondent is not in any way related to its business, is not one of its distributors and does not carry out any activity for it or any business with it. The Complainant emphasizes that it has not authorized the Respondent to use the Domain Name for a parking page displaying links relating to the Complainant's activities.
The Complainant alleges that the Domain Name was registered and is being used in bad faith. The Complainant notes that it registered the SNCF RESEAU marks and corresponding domain names before the Respondent registered the Domain Name and points out that the Respondent must have been aware of the Complainant's existence and its trademarks. The Complainant maintains that the Respondent's use of the Domain Name for a parking page displaying links to websites of the Complainant and others relating to the Complainant's activities is likely to cause confusion of a substantial proportion of Internet users who will believe that the Domain Name locates a website of or authorized by the Complainant.
The Complainant seeks a decision that the Domain Name be transferred to the Complainant.
As stated above, the Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove: (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. It is convenient to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondent's default in failing to file a response. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has registered rights in the SNCF RESEAU.
The Panel further considers that the Domain Name is confusingly similar to this mark, from which it differs only in the presence of a hyphen between the two elements, the addition of the letter "x" representing the plural, and the gTLD ".com". These additions are not sufficient to distinguish the Domain Name from the Complainant's mark. Many Internet users would assume that the Domain Name locates the website of the Complainant.
The first requirement of the UDRP is satisfied.
B. Rights or Legitimate Interests
Panels appointed under the UDRP have held that a registrant of a domain name that identifies the owner of a trademark may have a legitimate interest in the domain name if it has used that name in good faith to locate a website advertising or offering for sale goods or services of the Complainant.
In Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903, the Panel identified four cumulative criteria that should be met for such use to be regarded as bona fide and as giving rise to a legitimate interest on the part of the registrant:
(i) the respondent must actually be offering the goods or services at issue;
(ii) the respondent must use the site to sell only the trademarked goods or services;
(iii) the site must accurately and prominently disclose the registrant's relationship with the trademark holder; and
(iv) the respondent must not try to "corner the market" in domain names that reflect the trademark.
These considerations are potentially applicable in this case, since the Respondent's web page appears to display links to websites providing information about the Complainant's train services and facilities to purchase tickets for those services.
However, in this case, it is doubtful whether criterion (i) is satisfied, since the Respondent has not himself offered the information or tickets. It is also doubtful that criterion (ii) is satisfied, since some of the links are to websites of ticket-sellers other than the Complainant, even if they are selling tickets for the Complainant's train services. In any event, it is clear that criterion (iii) is not satisfied, since the Respondent's web page does not disclose the Respondent's lack of any relationship with the Complainant at all, let alone accurately and prominently.
In the circumstances, the Panel finds that the Respondent has not used the Domain Name in connection with a bona fide offering of goods or services such as to give rise to a right or legitimate interest in it in accordance with paragraph 4(c)(i) of the UDRP.
It is also clear and not disputed that the Respondent is not commonly known by the Domain Name. The Panel is further satisfied on the undisputed evidence that the Respondent is not making noncommercial use of the Domain Name, since at least some of the links displayed on the Respondent's website are no doubt sponsored. In any case, the Panel finds that the use made of the Domain Name by the Respondent is not legitimate or fair, given the failure to disclose the Respondent's lack of any relationship with the Complainant.
In these circumstances, none of the examples of circumstances giving rise to rights or legitimate interests identified in paragraph 4(c) of the UDRP applies. On the evidence, the Panel is satisfied that there is no other basis on which the Respondent could claim any right or legitimate interest in the Domain Name. The second requirement of the UDRP is satisfied.
C. Registered and Used in Bad Faith
The Panel finds on the undisputed evidence that by using the Domain Name, the Respondent has intentionally attempted to attract Internet users to its web page by creating a likelihood of confusion with the Complainant's mark as to its source, sponsorship or endorsement, for commercial gain in the form of
click-through commissions on the links provided on it.
In accordance with paragraph 4(b)(iv) of the UDRP, this constitutes evidence of registration and use of the Domain Name in bad faith. There is no evidence in the file contradicting this presumption, and it is reinforced by the absence of any indication on the Respondent's web page that the Respondent is not authorized by or connected with the Complainant.
The Panel therefore finds that the Domain Name was registered and is being used in bad faith. All three requirements of the UDRP are satisfied and it is appropriate to direct that the Domain Name be transferred to the Complainant.
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 <sncf-reseaux.com> be transferred to the Complainant.
Date: July 1, 2018