WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Car&Boat Media v. Tmd location
Case No. D2019-0992
1. The Parties
Complainant is Car&Boat Media, France, represented by Inlex IP Expertise, France.
Respondent is Tmd location, Morocco.
2. The Domain Name and Registrar
The disputed domain name <mavoiture.cash> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 30, 2019. On May 1, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 2, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on May 17, 2019 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on May 21, 2019.
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 May 24, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 13, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 20, 2019.
The Center appointed Marina Perraki as the sole panelist in this matter on June 26, 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 French company that provides services of estimate of the surrender value of cars and of buy-back of used cars under the brand MAVOITURECASH. Complainant provides its services through its website “www.mavoiturecash.fr”.
Complainant has made advertising investments for its brand MAVOITURECASH, including a large-scale TV advertising campaign in France in 2017.
Complainant holds the French trademark MAVOITURECASH (semi-figurative) No. 4313633, filed and registered on November 10, 2016, for goods and services in international classes 9, 12, 35, 38, 41 and 42.
Furthermore, Complainant is the owner of the domain names <mavoiturecash.com> and <mavoiturecash.fr>, registered on December 2, 2013.
The Domain Name was registered on July 5, 2018 and is used to host a website that offers services identical to those of Complainant, namely services of estimate of the surrender value of cars and of buy-back of used cars (the “Website”). The Website is in French, the address appearing in the Contact section of the Website is in Lille, France and the name of the entity that appears in the Contact section is “Ma voiture cash”.
On December 19, 2018 and February 20, 2019, Complainant sent cease and desist letters to Respondent. The letters were sent by post to the address indicated on the Website as contact address, namely “40 Boulevard de l’Usine, 59800 Lille, France”, to the attention of “Ma voiture cash Lille” Lille and were returned to Complainant as “unclaimed”.
5. Parties’ Contentions
Complainant asserts that it has established all three elements required under paragraph 4(a) of the Policy for a transfer of the Domain Name.
Respondent did not reply to the Complainant’s contentions.
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
Complainant has demonstrated rights through registration and use on the MAVOITURECASH mark.
The Panel finds that the Domain Name <mavoiture.cash> is confusingly similar to Complainant’s trademark MAVOITURECASH.
Thegeneric Top-Level Domain (“.cash”) and the second- level portion of the Domain Name (“mavoiture”) compose, in combination, Complainant’s trademark MAVOITURECASH (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.3, Compagnie Générale des Etablissements Michelin v. Pacharapatr W., WIPO Case No. D2016-2465; Totaljobs Group Limited v. Faisal Khan, CreativeMode Ltd, WIPO Case No. D2017-0295).
The Domain Name incorporates Complainant’s trademark in its entirety. This is sufficient to establish confusing similarity (Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525).
The Panel finds that the Domain Name <mavoiture.cash> is confusingly similar to the MAVOITURECASH mark of Complainant.
Complainant has established Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] 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 trademark or service mark at issue.
The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name.
Respondent has not submitted any response and has not claimed any such rights or legitimate interests with respect to the Domain Name. As per Complaint, Respondent was not authorized to register the Domain Name.
Respondent did not demonstrate, prior to the notice of the dispute, any use of the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services. On the contrary, as Complainant has demonstrated, the Domain Name is used to host a Website that provides services identical to those of Complainant, by a “MA VOITURE CASH”, at the address 40 boulevard de l’Usine, 59800 Lille, France, which Complainant submits, does not exist according to the French trade and companies register (MatchNet plc. v. MAC Trading, WIPO Case No. D2000-0205).
The Panel finds that these circumstances do not confer upon Respondent any rights or legitimate interests in respect of the Domain Name.
Complainant has established Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith. As per Complaint, Complainant’s MAVOITURECASH mark had been used and registered at the time of the Domain Name registration by Respondent, therefore the Panel finds it more likely than not that Respondent had Complainant’s mark in mind when registering this Domain Name (Tudor Games, Inc. v. Domain Hostmaster, Customer ID No. 09382953107339 dba Whois Privacy Services Pty Ltd / Domain Administrator, Vertical Axis Inc., WIPO Case No. D2014-1754; Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000‑0226).
Respondent should have known about Complainant’s rights, as such knowledge is readily obtainable through a simple browser search and also due to Complainant’s nature of business, provided online through its website “www.mavoiturecash.fr” (Caesars World, Inc. v. Forum LLC, WIPO Case No. D2005-0517; Compart AG v. Compart.com / Vertical Axis Inc., WIPO Case No. D2009-0462).
Furthermore, the Domain Name incorporates in whole Complainant’s mark. The use of the Domain Name therefore creates a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Domain Name. It also indicates knowledge of Complainant and its field of business. This also supports registration in bad faith (WIPO Overview 3.0, section 3.1.4), reinforcing the likelihood of confusion, as Internet users are likely to consider the Domain Name as in some way endorsed by or connected with Complainant (Ann Summers Limited v. Domains By Proxy, LLC / Mingchun Chen, WIPO Case No. D2018-0625; Marie Claire Album v. Whoisguard Protected, Whoisguard, Inc. / Dexter Ouwehand, DO, WIPO Case No. D2017-1367).
As regards bad faith use, Complainant demonstrated that the Domain Name is used to host a Website that provides services identical to those of Complainant, as an attempt to attract, for commercial gain, Internet users searching for Complainant’s MAVOITURECASH mark, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship or affiliation of the website and this is a clear indication that the Domain Name is being used in bad faith (Pfizer Inc. v. jg a/k/a Josh Green, supra; F. Hoffmann-La Roche AG v. Pinetree Development, Ltd., WIPO Case No. D2006-0049; Twitter, Inc. v. Whois Agent, Whois Privacy Protection Service, Inc. / Domain Support, WIPO Case No. D2015-1488.
Under these circumstances and on this record, the Panel finds that Respondent has registered and is using the Domain Name in bad faith.
Complainant has established Policy paragraph 4(a)(iii).
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 <mavoiture.cash> be transferred to Complainant.
Date: July 10, 2019