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Societe Nouvelle du Journal L’Humanitй v. Cyril Havas
Case No. D2006-0018
1. The Parties
The Complainant is Societe Nouvelle du Journal L’Humanitй, Saint-Denis, France, represented by Markplus International, France.
The Respondent is Cyril Havas, The Gadgeteer, United Kingdom of Great Britain
and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <pifgadget.net> (the “Domain Name”)
is registered with Schlund + Partner AG, Germany.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 9, 2006. On January 9, 2006 , the Center transmitted by email to Schlund + Partner AG a request for registrar verification in connection with the Domain Name. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 17, 2006, identifying the registrar. On January 16, 2006, Schlund + Partner AG transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 January 20, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was February 9, 2006. The Response was filed with the Center on February 9, 2006.
The Center appointed Andrea Mondini as the sole panelist
in this matter on February 21, 2006. 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,
4. Factual Background
The Complainant is the owner of two French trademark registrations for PIF GADGET claimed notably for printed matter, magazines, books and comics with filing dates of September 2, 2003 (word mark) and July 9, 2004 (device).
The Respondent registered the Domain Name on October 21, 2004.
5. Parties’ Contentions
The Complainant contends:
- That the Domain Name is identical to the Complainant’s trademark.
- That Pif Gadget is a famous comic strip magazine in France which has been sold since 1969 and that the Respondent must have been aware of this magazine and could not have chosen the Domain Name by coincidence.
- That the Complainant sent several cease and desist letters to the Respondent and that nevertheless the Respondent proceeded with the renewal of the Domain Name.
- That Respondent’s passive holding of the Domain Name is tantamount to use in bad faith.
The Respondent contends:
- That the Domain Name is not identical to the Complainant’s trademark because there is no hyphen between Pif and Gadget.
- That the acronym PIF in the Domain Name stands for “Practical Innovative and Fabulous” gadgets.
- That although no website has been posted yet under the Domain Name, the Respondent has undertaken “a lot of preparation work” and has a business plan to advertise and sell gadgets on line.
- That no confusion with the French children’s magazine is possible, as this comic strip is unknown in the English speaking world.
- That Respondent was not aware of the Complainant’s trademark registrations.
6. Discussion and Findings
To have the disputed domain name transferred to the Complainant, it must prove each of the following (Policy, paragraph 4(a)):
(i) that the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the Respondent’s domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Domain Name <pifgadget.net> is clearly identical to the French registration No. 03 3 243 637 of the word mark PIF GADGET in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant must show that the Respondent has no rights or legitimate interests in respect of the Disputed Domain. The Respondent does not assume the burden of proof, but may establish a right or legitimate interest in a disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy:
(a) that he used or has made 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 prior to the dispute;
(b) that he is commonly known by the domain name, even if he has not acquired any trademark rights; or
(c) that he intends to make a legitimate, non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.
The Complainant has shown that the Respondent has no rights or legitimate interest in respect of the Disputed Domain Name. The Respondent contends that he has undertaken “a lot of preparation work” and has a business plan to advertise and sell gadgets on line. However, the Respondent has not submitted any evidence whatsoever in support of his allegations. In the absence of any evidence of Respondent’s alleged preparation work, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
The Complainant has shown that its trademark PIF GADGET is well known at least in France for a comic-strip magazine. The Respondent’s explanation that the element “PIF” in the Disputed Domain Name stands for “Practical, Innovative and Fabulous” does not convince this Panel because it is not corroborated by any evidence.
The Respondent passively held the Domain Name since its registration on October 21, 2004,
without posting any website. Such passive holding of a domain name constitutes
use of the Domain Name in bad faith (Telstra Corp. v. Nuclear Marshmallows
WIPO Case No. D2000-0003).
The Panel also notes that the Respondent’s whois details are inaccurate and that the responsibility to update the whois details is with the Respondent.
Therefore, the Panel concludes that the Domain Name has been registered and
used in bad faith.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <pifgadget.net> be transferred to the Complainant.
Date: March 6, 2006