WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Perfect Privacy, LLC / Milen Radumilo

Case No. D2021-2863

1. The Parties

Complainant is Société Anonyme des Eaux Minérales d'Evian (SAEME), France, represented by Eversheds Sutherland (France) LLP, France.

Respondent is Perfect Privacy, LLC, United States of America / Milen Radumilo, Romania.

2. The Domain Name and Registrar

The disputed domain name <evianroyalresort.com> (the “Domain Name”) is registered with Blue Angel Domains LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 31, 2021. On August 31, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 2, 2021, 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 September 3, 2021, 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 September 7, 2021.

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 September 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was September 30, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 5, 2021.

On October 5, 2021 and October 13, 2021, the Center received two communications from a third party.

The Center appointed Marina Perraki as the sole panelist in this matter on October 15, 2021. 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 company incorporated under French law, and a subsidiary of Danone S.A., a global food and beverage group. Complainant distributes water from the source of Evian. The Evian water history began in 1789 when Marquis of Lessert discovered the natural spring water source of Evian in the town of Evian-les-Bains, France. In 1826, the first bottling facility opened. Evian water has grown in popularity and has acquired an extensive notoriety and visibility, including online. The EVIAN mark enjoys reputation as repeatedly recognised (Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Sungjun Cho, WIPO Case No. D2020-1597, Société Anonyme des Eaux Minérales d'Evian (SAEME) v. ALEX GLEDSON / Whoisguard, Inc., WIPO Case No. D2016-0433, Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Nadex Aktiebolag, WIPO Case No. D2010-0328). Evian water is now marketed on all five continents, in more than 140 countries across the world. Over 1.5 billion bottles of Evian water are sold each year. In 2018, Evian water was recognised as the number one premium spring water worldwide. Complainant annually invests substantial resources on the advertising and promotion of its EVIAN trademark including online and in social media. Currently, the Evian pages have over 140 million followers on Instagram and over 40 million followers on Twitter, while the Evian Resort page has over 11 million followers on Instagram.

Complainant and its group of companies also owns the hotel resort “Evian Resort”, located in the town of Evian-les-Bains, France, near the source of the Evian water, the construction of which started in 1905. The revenues of the Evian Resort exceeded EUR 62 million in 2018.

Complainant owns numerous trademark registrations for EVIAN including:

- the international trademark registration, EVIAN (word), No. 235956, registered on September 24, 1960, for goods in international classes 32 and 33;
- the French trademark registration EVIAN ROYAL RESORT (word), No. 3370895, filed and registered on July 19, 2005, for services in international classes 41, 43, and 44 and;
- the European Union trademark registration EVIAN (word), No. 001422716, filed on November 18, 1999, and registered on September 18, 2006, for goods in international classes 3, 18 and 32.

Complainant and its group of companies also owns numerous domain name registrations for EVIAN, including <evian.com> registered on May 14, 1997, and <evianresort.com> registered on March 25, 2005.

The Domain Name was registered on January 16, 2021, and, as Complainant demonstrated, redirects to different third party sites at different times, through a 302-type redirection, including to a pornographic website, a survey website classified as a phishing website, as well as a website facilitating the dissemination of spyware.

5. Parties’ Contentions

A. Complainant

Complainant asserts that it has established all three elements required under paragraph 4(a) of the Policy for a transfer of the Domain Name.

B. Respondent

Respondent did not reply to the Complainant’s contentions.

In its two communications to the Center, the third party established that it was unconnected to the Domain Name.

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 EVIAN ROYAL RESORT and EVIAN marks.

The Panel finds that the Domain Name is identical to the EVIAN ROYAL RESORT trademark of Complainant.

The generic Top-Level Domain (“gTLD”) “.com” is disregarded, as gTLDs typically do not form part of the comparison on the grounds that they are required for technical reasons (Rexel Developpements SAS v. Zhan Yequn, WIPO Case No. D2017-0275; Hay & Robertson International Licensing AG v. C. J. Lovik, WIPO Case No. D2002-0122).

Complainant has established paragraph 4(a)(i) of the Policy.

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 Complainant, Respondent was not authorized to register the Domain Name.

Respondent did not demonstrate any rights or legitimate interests in the Domain Name prior to the notice of the dispute use of the Domain Name or a trademark corresponding to the Domain Name in connection with a bona fide offering of goods or services.

On the contrary, the Domain Name is used to redirect to third party sites, not connected to Complainant, including a pornographic website, a survey website classified as a phishing website, as well as a website facilitating the dissemination of spyware. A respondent’s use of a complainant’s mark to redirect Internet users would not support a claim to rights or legitimate interests (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.5.3).

Furthermore, there is no evidence on record giving rise to any rights or legitimate interests in the Domain Name on the part of Respondent within the meaning of paragraphs 4(c)(ii) and 4(c)(iii) of the Policy.

In addition, the Domain Name incorporates entirely Complainant’s mark and thus carries a risk of implied affiliation (WIPO Overview 3.0, section 2.5.1).

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 paragraph 4(a)(ii) of the Policy.

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. EVIAN, a well-known mark that enjoys goodwill and worldwide reputation (see Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Sungjun Cho, WIPO Case No. D2020-1597, Société Anonyme des Eaux Minérales d'Evian (SAEME) v. ALEX GLEDSON / Whoisguard, Inc., WIPO Case No. D2016-0433, Société Anonyme des Eaux Minérales d'Evian (SAEME) v. Nadex Aktiebolag, WIPO Case No. D2010-0328), is entirely incorporated in the Domain Name. Because the EVIAN trademark had been widely registered and used at the time of the Domain Name registration by Respondent, the Panel finds it more likely than not that Respondent had Complainant’s mark in mind when registering the Domain Name (see 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 Internet search due to Complainant’s use of the EVIAN mark (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, Respondent could have conducted a trademark search and would have found Complainant’s prior registrations in respect of the EVIAN mark (Citrix Online LLC v. Ramalinga Reddy Sanikommu Venkata, WIPO Case No. D2012-1338).

As regards bad faith use, the Domain Name redirected to different sites at different times. These included a pornographic website, a survey website classified as a phishing website, as well as a website facilitating the dissemination of spyware. Such use of a domain name to redirect to different websites each time constitutes evidence of a respondent’s bad faith.

Furthermore, the Domain Name was used intentionally, for commercial gain, creating a likelihood of confusion with Complainant’s trademark and business as to the source, sponsorship, affiliation or endorsement of the websites it resolved to. This supports a finding of bad faith registration and use (WIPO Overview 3.0, section 3.1.4).

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 paragraph 4(a)(iii) of the Policy.

7. Decision

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 <evianroyalresort.com> be transferred to the Complainant.

Marina Perraki
Sole Panelist
Date: October 29, 2021