ADMINISTRATIVE PANEL DECISION
Comercial Ariete, S.A DE C.V. v. Matthieu Rochegude
Case No. D2018-2569
1. The Parties
Complainant is Comercial Ariete, S.A DE C.V. of Colonia Nápoles, Mexico, represented by Carpio, Ochoa & Martínez Abogados, Mexico.
Respondent is Matthieu Rochegude of Valence, France, self-represented.
2. The Domain Name and Registrar
The disputed domain name <mycarflex.com> (the “Domain Name”) is registered with OVH (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on November 9, 2018. On November 12, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 15, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on November 20, 2018, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. On November 20, 2018, the Center also sent a Complaint Deficiency Notification to the Complainant. Complainant filed an amended Complaint on November 25, 2018.
On November 20, 2018, the Center sent an email communication in English and French to the Parties, informing them the language of the registration agreement is French and inviting the Parties to submit their preferences regarding the language of the proceeding. On November 23, 2018, Complainant requested English be the language of the proceeding and Respondent submitted its request on November 25, 2018, that French be the language of the proceeding.
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 Respondent of the Complaint, and the proceedings commenced on December 5, 2018. In accordance with the Rules, paragraph 5, the due date for Response was December 25, 2018. The Response was filed with the Center on December 21, 2018.
The Center appointed Robert A. Badgley as the sole panelist in this matter on January 11, 2019. 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
Complainant is a rent-a-car company founded in Mexico in 1962. It is the Mexican partner of the Avis Budget Group, which provides rental car services in the United States of America, New Zealand, and Australia. Complainant holds several registrations of the trademark CARFLEX in Mexico, in connection with car leasing and tourism services. Complainant’s earliest Mexican registration of the CARFLEX mark is April 30, 1999, under registration no. 608115.
Complainant’s Internet website is accessible at the domain name <carflex.mx>. There is no allegation or evidence in the record that Complainant operates, or intends to operate, outside of Mexico.
The Domain Name was registered on March 12, 2017. The Domain Name resolves to the website “www.mycarflex.fr”, at which site a simple login box appears, in French. The box sits beneath a stylized MyCarflex logo, and asks the visitor for his username and password. It also provides a “remember me” box so the visitor does not have to provide his password each time he wishes to login.
Respondent is the Secretary-General of Carflex SAS, a corporation formed in France in 2010. An agenda annexed to the Response indicates that Carflex SAS was developed after a meeting in Marseille, France in September 2006. According to Respondent, the Domain Name was registered in connection with Carflex SAS’s business, which is to serve as an association of automobile body repair businesses in France. According to Respondent, Carflex SAS operates solely in France and, while it has not ruled out expanding its business to other parts of Europe, has no designs to do business in Mexico. Respondent explains that the term “car flex” is an abbreviation of “carrosserie flexible” (“flexible bodywork”).
According to Respondent, it is a business-to-business service provider, whose member auto body shops sign in to the website accessible via the Domain Name in order to partake of the information and services available at this members-only site. The Carflex SAS association appears to address common concerns of auto repair shop owners, and seeks to enhance the bargaining strength of the member body shop businesses. For instance, Carflex SAS enters into contracts with suppliers (such as auto paint and spare parts) that leverage the size of the membership to secure better contracts. Respondent provides evidence of trade publications that have covered Carflex member meetings.
Respondent also holds trademark registrations in France for the mark CARFLEX, one of which was registered on September 12, 2018.
There does not appear to have been any correspondence between the Parties before the Complaint was filed in this proceeding.
5. Parties’ Contentions
Complainant asserts that it has established all three elements required under the Policy for a transfer of the Domain Name.
Respondent asserts that his company is a legitimate and established business in France, and that he and his company were unaware of Complainant and the latter’s CARFLEX mark, which in any event has no presence in France.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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
In view of the Panel’s conclusion below that Respondent has rights and legitimate interests in respect of the Domain Name, the Panel need not decide the “confusing similarity” issue.
B. Rights or Legitimate Interests
The Panel finds that Complainant has not demonstrated that Respondent lacks rights and legitimate interests in respect of the Domain Name for purposes of the Policy. Long before receiving any notice of this dispute, Carflex SAS – the company of which Respondent is Secretary General – had been registered as a French company. For several years prior to any notice of this dispute, Respondent’s company had been operating in France as an association for member firms in the automobile repair industry and had been using the mark CARFLEX to identify and distinguish its business-to-business services.
Respondent denies having had knowledge of Complainant or its CARFLEX Mexican trademark at the time he registered the Domain Name. There is simply no evidence in this record to suggest that Respondent (or his French company) targeted Complainant’s Mexican trademark, and there is no basis in the record to question the legitimacy of Respondent’s conduct vis-à-vis the Domain Name.
The Panel concludes that Complainant has not demonstrated that Respondent lacks rights and legitimate interests in respect of the Domain Name, and therefore the Complaint fails.
C. Registered and Used in Bad Faith
The Panel does not have to decide the “bad faith” issue, but notes that it cannot detect any basis in the record for concluding that the Domain Name was registered and used in bad faith by Respondent.
D. Language of the Proceeding
In this case, the Complaint was submitted by the Mexican Complainant in the English language. The Response was submitted by the French respondent in English. The registration agreement pursuant to which the Domain Name was registered is in French. The Panel has discretion with regard to the language of the Administrative Panel Decision. Here, the Panel has elected to render the decision in English in accordance with paragraph 11(a) of the Rules. This was done in part because Respondent’s mastery of English is fairly strong, as evidenced by the content of the Response. The Panel also elects to decide the case in English out of a sense of fairness to Complainant – the losing Party here. The Panel believes that it is more important for the losing Party to understand fully the reasons for the adverse decision, whereas the Panel presumes from experience that the prevailing Party will be largely content with the victory. See OTCF, S.A. v. Radji Minatchy, WIPO Case No. D2018-1016 (declining to use language in domain name registration agreement in order to explain clearly to losing party why it lost).
For the foregoing reasons, the Complaint is denied.
Robert A. Badgley
Date: January 16, 2019