WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Flunch v. yrvine Moundanga, Flunchbox
Case No. D2021-3828
1. The Parties
The Complainant is Flunch, France, represented by AARPI Scan Avocats, France.
The Respondent is yrvine Moundanga, Flunchbox, France.
2. The Domain Name and Registrar
The disputed domain name <flunchbox.com> is registered with Tucows Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 16, 2021. On November 17, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 17, 2021, 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 November 19, 2021, 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 November 22, 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 the Respondent of the Complaint, and the proceedings commenced on November 24, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 14, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 15, 2021.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on January 5, 2022. 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, a French company incorporated in 1999, developed a franchise chain of cafeteria-style casual self-service restaurants, open seven days per week, offering quality fast food. Originally created in 1971 in France, the franchise expanded to Spain, Italy, Portugal, Russian Federation, and Poland. In around 200 outlets, the more than 10,000 employees of the franchise serve currently over 60 million customers each year.
The Complainant owns a number of trademarks, including the French trademark FLUNCH BOX, registered under No. 4069919 on February 19, 2014, and the European Union trademark FLUNCH BOX, registered under No. 013100334 on December 2, 2014 (together hereinafter referred to as: “the Mark”).
The Complainant also owns inter alia the <flunch.fr> domain name, which resolves to its official website.
The disputed domain name <flunchbox.com> was created on August 30, 2021.
The Complainant has submitted evidence that the disputed domain name initially resolved to a website in the English language operating in the food sector and offering for sale meal boxes priced in GBP. At the time of this decision, the disputed domain name resolves to an inactive page.
5. Parties’ Contentions
(i) The Complainant submits that the disputed domain name reproduces the Mark, in which the Complainant has rights, and is identical to the Mark, insofar as it is integrally reproduced in the disputed domain name <flunchbox.com>.
(ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Furthermore, the Complainant contends it never authorized the Respondent to use the Mark in any manner and that the Respondent has never had any affiliation with the Complainant.
(iii) The Complainant submits that the Respondent has registered the disputed domain name in bad faith and alleges that the Respondent had knowledge of the Mark when registering the disputed domain name.
(iv) The Complainant submits that the Respondent is using the disputed domain name in bad faith.
(v) The Complainant requests that the disputed domain name be transferred to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Procedural Aspects - Failure to Respond
As aforementioned, no Response was received from the Respondent.
Under the Rules, paragraphs 5(f) and 14(a), the effect of a default by the Respondent is that, in the absence of exceptional circumstances, the Panel shall proceed to a decision on the basis of the Complaint.
Under paragraph 4(a) of the Policy, it is the Complainant’s burden to establish that all three of the required criteria for a transfer of the disputed domain name have been met, even in the event of a default.
Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences from the Respondent’s default as it considers appropriate under the circumstances.
In this case, the Panel finds that as a result of the default, the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant. In particular, by defaulting and failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy or otherwise, from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.
Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent has acted in bad faith.
6.2. Requirements of Paragraph 4(a) of the Policy
A. Identical or Confusingly Similar
In comparing the Mark with the disputed domain name <flunchbox.com>, it is evident that the latter consists of the Mark, followed by the generic Top-Level Domain (“gTLD”) “.com”.
It is well established that a gTLD does not generally affect the assessment of a domain name for the purpose of determining identity or confusingly similarity.
The Panel finds that the disputed domain name <flunchbox.com> is identical to the Mark, which is integrally reproduced.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that with regard to paragraph 4(a)(ii) of the Policy, this could result in the often impossible task of proving a negative proposition, requiring information that is primarily, if not exclusively, within the knowledge of a respondent.
Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden of production of evidence to the respondent to come forward with evidence of rights or legitimate interests in a domain name, once the complainant has made a prima facie showing, as the Panel believes the Complainant has made in this case. See Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
As previously noted, the Respondent offered no reason for selecting the disputed domain name. There is no evidence that the Respondent is known by the disputed domain name. The way the Respondent has used the disputed domain name is not bona fide (see Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903). The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. The disputed domain name resolved to a website offering for sale meal boxes under a logo using the Mark, showing a clear intent to obtain an unfair commercial gain, whilst misleadingly diverting Internet users and potentially tarnishing the Mark.
No information is provided on what rights or legitimate interests the Respondent may have in the disputed domain name.
In the circumstances, the Panel concludes that the Complainant has established the requirement of paragraph 4(a)(ii) of the Policy with respect to the disputed domain name.
C. Registered and Used in Bad Faith
As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering the disputed domain name identical to the Mark, which can be considered as “cybersquatting”.
It is established in prior UDRP decisions that where the respondent knew or should have known of a trademark prior to registering the disputed domain name, such conduct may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Weetabix Limited v. Mr. J. Clarke, WIPO Case No. D2001-0775.
In this case, considering that the disputed domain name resolved to a page offering for sale meal boxes under a logo displaying the Mark, the Panel finds that it is impossible to believe that the Respondent chose to register the disputed domain name randomly with no knowledge of the Mark. See Barney’s Inc. v. BNY Bulletin Board, WIPO Case No. D2000-0059; Kate Spade, LLC v. Darmstadter Designs, WIPO Case No. D2001-1384, citing Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028; and SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092.
Furthermore, considering the Respondent’s use of the disputed domain name, the Panel concludes that the Respondent knew of the Mark when the Respondent registered the disputed domain name, and that such registration was made in bad faith.
The Panel finds that the Respondent has attempted to attract Internet users for commercial gain by creating a likelihood of confusion with the Mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website, and that such use is constitutive of bad faith.
Moreover, in this case, the Respondent configured a MX server under the disputed domain name. Although the MX server was not actually used to send phishing messages, such threat looms over the Complainant. Prior UDRP panels have held that configuring MX servers may in certain circumstances be indicative of registration in bad faith (see Robertet SA v. Marie Claude Holler, WIPO Case No. D2018-1878, and section 3.4 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).
Prior UDRP panels have also held that bad faith use of a domain name by a respondent may also result from the fact its good faith use is in no way plausible, considering the specificity of the activity (see Audi AG v. Hans Wolf, WIPO Case No. D2001-0148). The Panel finds it is indeed not possible to imagine any plausible future active use of the disputed domain name that would not be illegitimate, considering the specificity of the Complainant’s activity.
Finally, some UDRP panels have held that in certain circumstances, registrants of domain names have an affirmative duty to abstain from registering and using a domain name which is either identical or confusingly similar to a prior trademark held by others and that contravening that duty may constitute bad faith. See Policy, paragraph 2(b); Nike, Inc. v. B. B. de Boer, WIPO Case No. D2000-1397; Nuplex Industries Limited v. Nuplex, WIPO Case No. D2007-0078; Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304; BOUYGUES v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325; Media General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964; and mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141.
The Panel concludes in the light of all these circumstances that the Respondent’s registration and use of the disputed domain name constitute bad faith, and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case.
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, <flunchbox.com>, be transferred to the Complainant.
Date: January 13, 2022