WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Vivendi v. Data Protected Limited
Case No. D2019-1414
1. The Parties
The Complainant is Vivendi, France, represented by Nameshield, France.
The Respondent is Data Protected Limited, China.
2. The Domain Name and Registrar
The disputed domain name <vivendi.luxe> is registered with Alibaba.com Singapore E-Commerce Private Limited (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 19, 2019. On June 19, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 21, 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 the Complainant on June 26, 2019, 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 June 26, 209.
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 Respondent of the Complaint, and the proceeding commenced on June 28, 2019. In accordance with the Rules, paragraph 5, the due date for Response was July 18, 2019.
The Respondent sent Chinese language email communications to the Center on June 21, 2019, June 26, 2019 and June 28, 2019. In its email of June 28, 2019, the Respondent requested suspension of the proceeding to enable the Parties to conduct settlement negotiations. On the same date, the Center sent an email to the Parties regarding possible suspension of the proceeding; the Complainant requested suspension of the proceeding; and the Center emailed its notification of suspension to the Parties.
On July 22, 2019, the Complainant requested the reinstitution of the proceeding. On the same date, the Center notified the Parties of the recommencement of the proceeding, rendering the due date for Response August 11, 2019.
The Respondent did not submit any formal response. Accordingly, the Center proceeded to panel appointment on August 12, 2019.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on August 22, 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
The Complainant is a French multinational mass media conglomerate headquartered in Paris, and the owner of several international registrations for the trade mark VIVENDI (the “Trade Mark”), including International registration No. 687855 (designating China), with a registration date of February 23, 1998.
With 44,142 employees in 78 countries, the Complainant’s total worldwide revenue amounted to EUR 13,932 million in 2018.
In addition to its registrations for the Trade Mark, the Complainant has owned and used the domain name <vivendi.com> since November 12, 1997.
In at least one previous UDRP decision, the Trade Mark has been found to be “highly distinctive and well-established”.
The Respondent is apparently an individual resident in China.
C. The Disputed Domain Name
The disputed domain name was registered on June 11, 2019.
D. The Website at the Disputed Domain Name
The disputed domain name has not been used.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.
The Respondent did not file a formal Response. In its series of informal communications with the Center, the Respondent contended that:
(i) the Respondent registered the disputed domain name in good faith to be used as a digital blockchain wallet to trade Ethereum digital currency;
(ii) The Respondent’s net name, Wei Wendi, is also the name of 魏文帝 (Wei Wendi), an Emperor in Chinese history, and VIVENDI stands for魏文帝 (Wei Wendi) in Chinese; and
(iii) The Respondent is willing to consider selling the disputed domain name to the Complainant.
6. Discussion and Findings
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration.
The disputed domain name incorporates the entirety of the Trade Mark (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7). Excluding the generic Top-Level Domain “.luxe”, the disputed domain name is identical to the Trade Mark.
The Panel therefore finds that the disputed domain name is identical to the Trade Mark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The Complainant has not authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that he or she has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has not been used.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name; and there has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to rebut the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Respondent lacks rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Given the notoriety of the Complainant and of its Trade Mark (including in China, where the Respondent is based); the fact the disputed domain name is identical to the Trade Mark; the lack of any substantiated credible explanation from the Respondent; and the passive use of the disputed domain name, the Panel finds, in all the circumstances, that the requisite element of bad faith has been made out. The Panel considers it is inconceivable the Respondent was not aware of the Complainant’s Trade Mark at the time it registered the disputed domain name.
The Panel notes the Respondent has failed to submit any evidence in support of its informal response. The Panel also notes that the pinyin phonetic transliteration for魏文帝 (Wei Wendi) is not vivendi.
The Panel also considers that, in all the circumstances, the Respondent’s informal offer to consider selling the disputed domain name likely meets the requirements for bad faith under paragraph 4(b)(i) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in 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 <vivendi.luxe> be transferred to the Complainant.
Sebastian M.W. Hughes
Dated: September 6, 2019