WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Areva v. Andrew Smirnov /Whois privacy, Protected with PROXY-SERVICES, Imena Ltd. d.b.a PROXY-SERVICE.COM
Case No. D2013-1031
1. The Parties
Complainant is Areva of Paris, France, represented by Dreyfus & associés, France.
Respondent is Andrew Smirnov of Moscow, Russian Federation.
2. The Domain Names and Registrars
The disputed domain name <arevaathletisme.com> is registered with Topsystem, LLC (the “Registrar”).
The disputed domain name <athletismeareva.com> is registered with Nicco (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 7, 2013. On June 10, 2013, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On June 18, 2013, the Registrars transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on July 2, 2013 providing the registrant and contact information disclosed by the Registrars, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on July 5, 2013.
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”).
On July 8, 2013, having learned from registrar Nicco that the language of the registration agreement for the disputed domain name <athletismeareva.com> is Russian, the Center so informed the parties (in both English and Russian). The Center requested Complainant to provide, by July 11, 2013, one of the following: an agreement between the parties that the proceedings should be in English, or the Complaint in Russian translation, or a request for English to be the language of the proceedings. The Center instructed Respondent to submit his observations concerning the language of the proceedings by July 13, 2013 and cautioned him that, in the event Complainant requests English as the language of the proceedings, Respondent’s failure to respond will be construed by the Center as absence of any objection to Complainant’s request. Complainant submitted a request that English be the language of the proceedings for both domain names on July 11, 2013. Respondent submitted no response and, on July 16, 2013, the Center so notified the parties and advised them that it will proceed with the case.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint in both English and Russian, and the proceedings commenced on July 16, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was August 5, 2013. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 7, 2013.
The Center appointed Natasha Lisman as the sole panelist in this matter on August 16, 2013. 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. Language of the Proceedings
In view of (1) the fact that the language of the registration agreement for the disputed domain name <arevaathetisme.com> is English, thus requiring that English be the language of the proceedings as to that domain name, (2) Complainant’s indication that it has no knowledge of Russian, and (3) the Respondent’s failure to object to Complainant’s request that English be also the language of the proceedings for the second disputed domain name, <athletismeareva.com>, the Panel concludes that considerations of fairness, cost, and efficiency warrant that English be the language of the proceedings for both disputed domain names, as per paragraph 11(a) of the Rules.
5. Factual Background
Complainant is a top-ranked leader in the global nuclear power industry, with commercial and industrial activities on every continent. Since 2009, it has also been a sponsor of athletes, athletic teams and associations, and athletic activities, the most prominent of which is an annual event called Meeting AREVA. It has numerous AREVA trademarks around the world, including an international mark registered in 2004 covering goods in numerous classes in the Russian Federation. Starting in 1998, it has registered and owns several domain names incorporating the word “areva”, including “areva.ru”, registered in 2002. As recognized in a series of WIPO UDRP decisions, Complainant’s trademark AREVA is well known.
When the disputed domain names <arevaathletisme.com> and <athletismeareva.com> (the “Disputed Domain Names”) first came to Complainant’s attention, they were registered in the name of Alex Makarov/Domain Project LLC. Complainant brought a UDRP proceeding and on July 12, 2013 obtained the cancellation of the Disputed Domain Names. AREVA v. N/A, Alex Makarov / Domain Project LLC, WIPO Case No. D2012-1057. As disclosed by the Registrars to the Center, the Disputed Domain Names were re-registered in the name of Respondent in September 2012. Although the amended Complaint alleges that the Disputed Domain names were re-registered using a proxy service and names Imena Ltd. d.b.a. Proxy-Service.com of Riga, Latvia as a Respondent, along with Andrew Smirnov of Moscow, Russian Federation, this appears to be an error. The Panel accepts the Registrars’ information and deems Andrew Smirnov to be the sole registrant of the Disputed Domain Names and the sole Respondent in this proceeding.
As reported by Complainant and confirmed by the Panel, the Disputed Domain Names are inactive. Since Respondent has not submitted any response to the Complaint or any other communication to the Center, the purpose for which it re-registered the Disputed Domain Names, if any, is unknown.
6. Parties’ Contentions
Complainant asserts that the incorporation of the term “areva” in the Disputed Domain Names renders them confusingly similar to its AREVA mark, which was registered and became well-known for many years before the registration of the Disputed Domain Names. Complainant further states it never authorized Respondent to use the mark or register any domain name incorporating it and that this fact, combined with Complainant’s and its mark’s long-standing and broad prominence and the inactive nature of the Disputed Domain Names, unmistakably indicate that Respondent has no rights or legitimate interests in the Disputed Domain Names but, rather, has registered and is using them in bad faith.
Respondent did not reply to Complainants’ contentions.
7. Discussion and Findings
Paragraph 4(a) of the Policy requires that in order to prevail, a complainant must satisfy the following elements with respect to a disputed 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.
Although a respondent's default does not relieve the complainant from having to establish each of the above-listed three elements and thus does not automatically warrant a decision in its favor, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.2 (and cases cited therein), paragraph 14(b) of the Rules permits a panel, in the absence of exceptional circumstances, to draw from a failure of a party to comply with a provision or requirement of the Rules such inferences as it considers appropriate. There is no evidence in this case of any exceptional circumstances justifying Respondent’s default. On the contrary, the Center has made every effort to communicate the pendency of the Complaint to Respondent in both English and Russian, and both by email and express mail to the addresses on file with the Registrars. Consequently, the Panel draws the inference that Respondent does not and cannot dispute any of the specific facts alleged in the Complaint or the documentary evidence submitted in support of the Complaint.
In addition, the Panel notes that facts bearing on Respondent’s interests in the Disputed Domain Names are necessarily primarily or exclusively in his possession, as is information about what plans, if any, he has for using the inactive Disputed Domain Names. Therefore, with respect to the issues of Respondent’s interests and contemplated uses, it would be unfair to hold Complainant to the burden of providing evidence beyond the sole issue as to which it can reasonably be expected to have knowledge, namely whether it has ever authorized the Respondent to make any use of its AREVA mark. See American Council on Education and GED Testing Service LLC v. Direct Privacy ID 6CAE0, 46597, 605D8, Universal Academic Services / Domainadmin, Universal Academic Services, WIPO Case No. D2013-0983; AREVA v. N/A, Alex Makarov / Domain Project LLC, WIPO Case No. D2012-1057; Allianz, Compañia de Seguros y Reseguros S.A. v. John Michael, WIPO Case No. D2009-0942 (citing Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; LCIA (London Court of International Arbitration) v. Wellsbuck Corporation, WIPO Case No. D2005-0084; Ross-Simons, Inc. v. Domain.Contac, WIPO Case No. D2003-0994; RX America, LLC v. Matthew Smith, WIPO Case No. D2005-0540).
A. Identical or Confusingly Similar
In view of Complainant’s prominence and long record of registration and use of the AREVA mark in connection with its commercial and industrial activities in the field of nuclear power, its rights in the marks are indisputable. The Panel finds, on both visual and audio examination, that the incorporation of the term “areva” in its entirely in the Disputed Domain Names renders them confusingly similar to Complainants’ marks. See American Council on Education, GED Testing Service LLC v. Registrant : Domain Manager, Technology Online LLC, WIPO Case No. D2012-2287; PepsiCo, Inc. v. PEPSLSRL (a/k/a P.E.P.S[) and EMS Computer Industry (a/k/a EMS), WIPO Case No. D2003-0696. The addition of the word “athletisme” before or after “areva” only reinforces the confusion because of Complainant’s well-known association with sponsorship of athletic activities and events.
Accordingly, the Panel finds that the Complainant has satisfied the elements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Complainant’s assertion that it has never authorized Respondent to use the AREVA mark for any purpose, combined with the prominence of Complainant and its mark, are sufficient to make out a prima facie case that Respondent has no rights or legitimate interests in the mark. Under paragraph 4(c) of the Policy, a respondent may demonstrate rights and legitimate interests in an inactive domain name by showing, among other circumstances, that before receiving any notice of the dispute, Respondent made “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 has been “commonly known by the domain name.” As noted, Respondent failed to avail himself of the opportunity to offer such evidence and the Panel draws from this failure the inference that no such evidence, or any other evidence to counter Complainant’s assertions, exists. See AREVA v. N/A, Alex Makarov / Domain Project LLC, WIPO Case No. D2012-1057; AREVA v. St James Robyn Limoges, WIPO Case No. D2010-1017. Consequently, Complainant’s prima facie case stands unrefuted.
Therefore, the Panel finds that paragraph 4(a)(ii) of the Policy is also satisfied.
C. Registered and Used in Bad Faith
In the Panel’s view, the combination of all of the above-cited circumstances – the world-wide reputation of Complainant and its mark established long before the registration of the Disputed Domain Names, the registration of the mark in the Russian Federation, the lack of any authorization for Respondent’s use of the mark and his passive and unexplained holding of the Disputed Domain Names, their confusing similarity to Complainant’s mark aggravated by the incorporation of a word associated with one of Complainant’s prominent activities, and the fact that the Disputed Domain Names were registered shortly after they had been the subject of a prior and successful challenge in a UDRP proceeding – add up to a strong indication of bad faith. To reiterate, Respondent’s choice not to participate in these proceedings and offer any direct evidence bearing on his purpose or state of mind in registering the Disputed Domain Names further reinforces the combined effect of Complainant’s unavoidably circumstantial case. See AREVA v. N/A, Alex Makarov / Domain Project LLC, WIPO Case No. D2012-1057; Jay Leno v. St Kitts Registry, Domain Names Administration, WIPO Case No. D2009-0571; L’Oréal v. Lewis Cheng, WIPO Case No. D2008-0437); Fifth Third Bancorp. v. Secure Whois Information Service, WIPO Case No. D2006-0696.
Therefore, the Panel concludes that the Disputed Domain Names were registered and are being used in bad faith within the meaning and spirit of paragraph 4(a)(iii) of the Policy.
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 Names <arevaathletisme.com> and <athletismeareva.com> be transferred to Complainant.
Date: September 4, 2013