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ADMINISTRATIVE PANEL DECISION
Veolia Environnement v. Tom Baert
Case No. D2007-0068
1. The Parties
The Complainant is Veolia Environnement of Paris, France, represented by Cabinet Gide Loyrette Nouel, France.
The Respondent is Tom Baert of Genk, Belgium.
2. The Domain Name and Registrar
The disputed domain name <veolia.mobi> is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 18, 2007. On January 19, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On January 20, 2007, Go Daddy Software 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 and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on January 23, 2007. 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 24, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 13, 2007. The Response was filed with the Center on February 1, 2007.
The Complainant submitted a supplement filing on February 8, 2007. In response to this, Respondent submitted a supplement filing on February 12, 2007.
The Center appointed Peter G. Nitter as the sole panelist in this matter on February 12, 2007. 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.
The Panel approved both supplement filings, which were forwarded by the Center as requested to the Panel on February 23, 2007.
4. Factual Background
Complainant Veolia Environnement provides environmental services and operates on all five continents via four business divisions: transportation, water distribution and treatment, waste management and energy services. Complainant manages 270,000 employees worldwide.
Complainant also holds several trademarks which include the name VEOLIA, including VEOLIA ENVIRONNEMENT, VEOLIA ENVIRONMENT, VEOLIA WATER, VEOLIA WATER SYSTEMS and INSTITUT VEOLIA ENVIRONMENT. These trademarks are well-known internationally and notably in Belgium, which is also the domicile of the Respondent.
In 2005, the Complainant’s reported revenue was EUR 25.2 billion.
The disputed domain name <veolia.mobi> was registered by Respondent on September 27, 2006.
Complainant states that it became aware of the Respondent’s registration of the disputed domain name on September 27, 2006. Complainant sent a cease and desist e-mail to Respondent on December 7, 2006 requesting the transfer of the domain name, which Respondent refused.
5. Parties’ Contentions
Complainant asserts that it has registered the VEOLIA trademark both in word only and semi-figurative forms for an extensive range of products and services. According to Complainant, the VEOLIA trademark has been used by Complainant since the public announcement of the name VEOLIA on April 8, 2003. The name VEOLIA is well-known internationally and notably in Belgium, which is also the domicile of the Respondent.
Complainant contends that the disputed domain name is identical to its VEOLIA mark.
Complainant further asserts that Respondent has no rights or legitimate interests in the contested domain name. Complainant claims that it has not licensed Respondent to use the VEOLIA trademark and that the mere assertion of preparations to make legitimate non-commercial use of the contested domain name is not sufficient to grant Respondent legitimate rights or interests. Further, Complainant maintains that Respondent, due to his knowledge of the VEOLIA trademark and Complainant’s rights, has registered the contested domain name in bad faith. Further, Complainant holds that the <veolia.com> domain name is being used in bad faith through Respondent’s passive holding of the domain name.
Respondent states that the case was filed in bad faith and that Complainant has deliberately abused the administrative proceedings in an attempt to reverse domain-hijack the domain name of Respondent, and therefore asks the Panel to make a finding of reverse domain name hijacking.
Respondent maintains that he is an amateur investor in shares. The value of his portfolio is estimated to be EUR 45,000. Respondent further upholds that he did not have knowledge of Complainant’s rights to the VEOLIA mark, thus asserting that Complainant does not have any rights to the trademark VEOLIA. The Respondent claims that the disputed domain name was registered in order to provide a “mobile internet based investors forum where amateur investors can share information, opinions, advice, news, analysis…related to the Complainant’s share and where relevant public press documents can become widely accessible to investors or interested parties”. Further, Respondent holds that he has demonstrated preparations to use the contested domain name for a bona fide offering of services. Respondent also asserts that he is making a non-commercial use of the disputed domain name. According to the Respondent, the disputed domain name is neither registered nor used in bad faith.
6. Discussion and Findings
A. Identical or Confusingly Similar
From the evidence presented, the Panel finds that Complainant through registration and use of the trademark VEOLIA demonstrated rights in that trademark. Respondent’s assertion that he was not aware of Complainant’s rights to the trademark VEOLIA does not alter this fact. The disputed domain name incorporates in full the distinctive trademark VEOLIA. Previous Panel decisions under the UDRP have concluded that the generic top level domain denominator is irrelevant when determining whether a disputed domain name is confusingly similar to a protected trademark. Thus, the Panel finds that the disputed domain name is identical to Complainant’s trademark VEOLIA.
B. Rights or Legitimate Interests
The question concerns Respondent’s claim of legitimate interest in the domain name <veolia.mobi>.
Respondent has not claimed to have any rights to the VEOLIA mark corresponding to the disputed domain name or to have been granted any such rights by Complainant.
Respondent maintains that he has shown demonstrable preparations to use the contested domain name in connection with a bona fide offering of services related to an “investors forum” pursuant to paragraph 4(c)(i) of the Policy. Respondent asserts that his website will merely facilitate the sharing of information regarding Complainant and that this sharing of information, according to UDRP practice, constitutes a bona fide offering of services which provides Respondent with a legitimate interest in the disputed domain name. According to UDRP practice, the use of a domain name which intentionally trades on the fame of another cannot constitute a bona fide offering of goods or services. See Madonna Ciccone, p/k/a Madonna v. Dan Parisi and <madonna.com>, WIPO Case No. D2000-0847. Respondent has maintained that <veolia.com> was registered “because many amateur investors use the name “Veolia” to nominate the share”. The word VEOLIA is a neologism and is distinctive. The Panel considers that the reason investors use the name VEOLIA to “nominate the share” is due in large part to Complainant’s use of the name as a trademark. The Panel concludes that the Respondent, through the registration of the disputed domain name, is in all likelihood intentionally or trading or intending to trade on the fame of the VEOLIA trademark. Based on the above, the Panel does not find it necessary to assess whether Respondent has shown “demonstrable preparations” as mentioned in the Policy, paragraph 4(c)(i).
Further, Respondent has maintained that his use of the website is non-commercial and that he therefore has legitimate interests in the disputed domain name pursuant to paragraph 4(c)(iii) of the Policy. According to Respondent, the disputed domain name will be used to facilitate an “investor forum” where investors can share information, etc., regarding Complainant’s share, as already mentioned.
From the evidence presented however the disputed domain name is not being used for that purpose. It has been established by previous panels that non-commercial use in this context requires something more than mere intent; actual use is required. The Panel further notes that even if there were compelling evidence of use for the purpose described, there would nevertheless be some questions in this Panel’s mind about whether such use could in the circumstances reasonably be described as “non-commercial”. However, it is not necessary for the Panel to determine that issue here. The Panel is satisfied on the available evidence that the respondent is not using the disputed domain name for a non-commercial purpose within the meaning of paragraph 4(c)(iii) of the Policy.
The Panel finds that the Respondent does not have rights to and legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
Respondent asserts that he did not have knowledge of Complainant’s rights to the VEOLIA trademark and that he therefore did not register the disputed domain name in bad faith.
Based on the evidence presented, the Panel finds that Complainant’s trademark VEOLIA is widely known through out the world, including in Belgium where Respondent is domiciled. According to Respondent, the VEOLIA trademark was used to construct the disputed domain name “because many amateur investors use the name”. The Panel finds it hard to understand how Respondent under these circumstances could not be aware of the VEOLIA trademark. The Panel in the circumstances finds that Respondent in all likelihood registered the disputed domain name in order to “trade off” the reputation of Complainant.
The Panel has taken note of the fact that the website at the disputed domain is apparently a parked site listed as being “under construction”, and that it contains statements to the effect that it is intended for a noncommercial/nonprofit independent “Mobile Internet Investor Forum” unconnected with the Complainant or it’s mark VEOLIA. However, as noted, it is not being used for this purpose, and the presence of the disclaimer suggests knowledge of the Complainant’s mark. The Panel further notes that the disputed domain name is identical to the Complainant’s distinctive trademark, and also the above-mentioned assertion that investors use the name VEOLIA when referring to Complainant’s shares. In the circumstances, the Panel does not believe that the disputed domain name could have been registered other than with the Complainant’s trademark in mind.
The Panel finds on balance that <veolia.com> was registered in bad faith.
Respondent is not actively using the contested domain name. According to UDRP practice, this does not, however, prevent a finding of bad faith. This is reflected in the WIPO Overview, paragraph 3.2 and in UDRP practice. See, e.g., Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. The Panel is required to examine all the circumstances of the case to determine if the domain name is being used in bad faith in accordance with paragraph 4(a)(iii) of the Policy.
As already mentioned, Respondent maintains that his in active use of <veolia.com> is due to the stated project of setting up what would be an investors’ forum being in an early phase. Respondent asserts that the availability of the necessary technology and website applications is limited. Respondent also states that: “My best predictions with regard to the timeline where affordable and enhanced .mobi technology and/or applications will be available supported by a critical mass of .mobi users, is 1 to 4 years.”
However, the Panel has not found that Respondent has a legitimate interest in the use of <veolia.com>, as already mentioned. The trademark contained in the contested domain name is well-known, and in the Panel’s view Respondent must have been aware of Complainant’s rights to the VEOLIA trademark, especially taking into consideration Complainant’s use of the trademark in Belgium where Respondent is domiciled. Moreover, the Panel finds it difficult to conceive of an active use of the domain name that would not likely amount to an infringement of the Complainant’s VEOLIA mark.
Under these circumstances, the Panel finds that the passive holding of <veolia.com> constitutes use of the contested domain name in bad faith
Reverse domain name hijacking
The Respondent suggests that Complainant is guilty of Reverse Domain Name Hijacking. Reverse Domain Name Hijacking is defined in paragraph 15 (e) of the Rules as filing the complaint “in bad faith, for example in an attempt to harass the domain-name holder”. The Panel cannot find any basis for this accusation.
The Panel therefore concludes that this is not a case of Reverse Domain Name Hijacking.
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 <veolia.com> be transferred to Complainant.
Peter G. Nitter
Dated: March 1, 2007