WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
COMUTO v. Odobescu Adrian
Case No. DRO2014-0005
1. The Parties
The Complainant is COMUTO of Paris, France, represented by Nameshield, France.
The Respondent is Odobescu Adrian of Bucharest, Romania.
2. The Domain Name and Registrar
The disputed domain name <blablacar.ro> is registered with ROTLD (the "Registry").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 9, 2014. On July 9, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 10, 2014, 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 July 21, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on July 22, 2014.
The Center verified that the 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 21, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was August 20, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 25, 2014.
The Center appointed Marilena Comanescu as the sole panelist in this matter on September 1, 2014. 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.
Albeit the language of the registration agreement for the disputed domain name is Romanian, pursuant to the Rules, paragraph 11(b), the Panel hereby decides, at Complainant's request, that the language of this proceeding be English, particularly because the content of the website corresponding to the disputed domain name is in English and in order to avoid further unnecessary costs for the Complainant. Furthermore, the Panel is familiar with both languages and the Center properly notified the Respondent in both Romanian and English, thus ensuring the proper and correct notification of the present proceeding to the Respondent.
4. Factual Background
Since 2004, the Complainant is operating its website "www.blablacar.com" as a marketplace that connects drivers with empty seats to passengers looking for a ride. According to the Complainant, over 1 million people use its website monthly.
The Complainant holds trademark registrations for BLABLACAR, including the Community Trademark No. 010812485 for the word "BLABLACAR" filed in April 17, 2012 and registered for goods and services in International classes 9, 12, 38, 39 and 42. Also, the Complainant holds several websites, such as:
- <blablacar.com> registered on August 31, 2010;
- <blablacar.net> registered on September 16, 2010;
- <blablacar.es> registered on September 17, 2010; or
- <blablacar.it> registered on April 27, 2011.
The disputed domain name <blablacar.ro> was registered on November 13, 2012. At the time of filing the Complaint, it was used in relation to a website which presents a succession of various images apparently unrelated and making no reference to the wording "blablacar".
5. Parties' Contentions
The Complainant contends that the disputed domain name is identical to its trademark BLABLACAR, the Respondent has no rights or legitimate interests in the disputed domain name and the Respondent registered and uses the disputed domain name in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In view of the default and the absence of any reply to the Complaint by the Respondent, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which a complainant has rights; and
(ii) a respondent has no rights or legitimate interests in the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant holds registrations for the trademark BLABLACAR. The disputed domain name <blablacar.ro> embodies Complainant's trademark without any other distinctive sign.
Given the above, the Panel finds that the disputed domain name <blablacar.ro> is virtually identical to the Complainant's trademark BLABLACAR.
B. Rights or Legitimate Interests
The Complainant asserts that it has given no license or other right to use its trademark or register the disputed domain name. The word "blablacar" has no meaning in Romanian or English. The website corresponding to the disputed domain name contains a succession of images apparently without connection to each other and makes no reference to the wording "blablacar".
Further, the Complainant asserts that the Respondent intentionally concealed its identity, in order to escape any potential legal actions taken against it. Here, the Panel must disagree with the Complainant, as it is the Registry's policy, grounded on provisions of law, not to disclose information related to registrants - physical persons1.
In line with previous UDRP decisions and based on the case file, the Panel accepts that the Complainant has provided a prima facie case of the Respondent's lack of rights or legitimate interests in relation to the disputed domain name, and the burden of production shifts to the Respondent.
Although properly notified, the Respondent chose not to challenge the Complainant's allegations. There is no evidence before the Panel to support the contrary, and therefore the Panel accepts the Complainant's arguments as facts.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name <blablacar.ro>.
C. Registered and Used in Bad Faith
The disputed domain name was registered in 2012 and incorporates the Complainant's BLABLACAR mark used since 2004 and registered since 2011.
In this day and age of the Internet and advancement in information technology, taking into account the market presence of the Complainant in numerous European countries, its registered trademarks and presence on the Internet via its official websites, a simple search on the Internet reveals the presence of the Complainant's trademark and domain names. Therefore, the Panel finds that it is very likely that the Respondent had actual notice of the Complainant's trademark rights at the time he registered the disputed domain name.
Consequently, it would have been pertinent for the Respondent to provide an explanation of his choice in the disputed domain name, failing which the Panel draws the conclusion that the disputed domain name was registered in bad faith with intent to create an impression of association with the Complainant and its business.
Further, the disputed domain name resolves to a website which has no apparent connection with the Complainant and its business conducted under the BLABLACAR mark. At the same time, such website does not contain any reference to the wording "blablacar" or any legitimate, good faith business conducted by the Respondent under such name.
For the above reasons, it is unconceivable for the Panel to find a reasonable argument in favor of the Respondent supporting a legitimate use of the disputed domain name, to the contrary, the facts of this case support the inference that the Respondent's purpose was to divert traffic from the Complainant's website to the Respondent's website for the Respondent's own commercial gain. Such facts constitute bad faith under paragraph 4(b)(iv) of the Policy.
Such inference is also supported by the prior reasoning made in the case Paule Ka v. Paula Korenek, WIPO Case No. D2003-0453 where "the Panel concludes that knowledge of the mark at the time of registration followed by use in commerce without a legitimate interest and likely to create confusion (and thus allow the Respondent to free-ride on the Complainant's goodwill), is the proper test and that the Respondent has, in fact, "intentionally attempted to attract, for commercial gain, Internet users to the Respondent's web site or other on-line location, by creating a likelihood of confusion with the Complainant's mark."
For the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name <blablacar.ro> 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 <blablacar.ro> be transferred to the Complainant.
Date: September 9, 2014
1 Here is the announcement mentioned on the Registry's WhoIs when searching a domain name registered by a physical person: "According to the "Law no. 677/2001 for the protection of individuals with regard to the processing of personal data and the free movement of such data", personal data of individuals shall not be published."