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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Nature et Decouvertes v. David Roi

Case No. D2007-0097

 

1. The Parties

The Complainant is Nature et Dйcouvertes, Toussus le Noble, France, represented by Cabinet Regimbeau, France.

The Respondent is David Roi, Dinard, France.

2. The Domain Name and Registrar

The disputed domain name <nature-decouverte.net> is registered with Network Solutions, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 25, 2007. On January 29, 2007, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name at issue. On January 29, 2007, Network Solutions, LLC 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. The Center verified that 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 31, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was February 20, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 21, 2007.

The Center appointed Isabelle Leroux as the sole panelist in this matter on February 23, 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.

4. Factual Background

The domain name at issue is <nature-decouverte.net>. The disputed domain name was registered to David Roi, of France, on March 16, 2005.

The Complainant is Nature et Dйcouvertes, a French stock company. The Complainant owns, in particular the following trademarks:

- NATURE DECOUVERTES, a French word and design trademark No.°01 607 106 filed on July 31, 1990 in classes 9, 14, 16, 25 and 28;

- NATURE DECOUVERTES, a word and design international trademark registered under the number 670 796 on April 2, 1997, in classes 3, 4, 6, 8, 9, 11, 14, 15, 16, 19, 20, 21, 25, 28 and 31;

- NATURE ET DECOUVERTES, French word trademark No.°01 610 967 filed on June 27, 1990 and dully renewed, in classes 9, 14, 16, 25, 28;

- NATURE ET DECOUVERTES French word trademark No.°00 3 058 757 of October 18, 2000 in classes 38, 41 and 42.

The Complainant also owns the following domain names:

- <natureetdecouvertes.fr>, registered on August 30, 2000;

- <nature-et-decouvertes.fr>, registered on May 29, 2000;

- <natureetdecouvertes.com>, registered on November 28, 1996;

- <nature-et-decouvertes.com>, registered on May 14, 1999;

- <natureetdecouvertes.info>, registered on August 1, 2001;

- <natureetdecouvertes.biz>, registered on November 15, 2001;

- <natureetdecouverte.net>, registered on March 29, 2002 and

- <naturedecouvertes.com>, registered on July 24, 2000.

The Complainant requests the Administrative Panel issue a decision ordering the transfer of <nature-decouverte.net> to the Complainant.

5. Parties’ Contentions

A. Complainant

The Complainant contends that it had registered and used several French and international trademarks as well as various domain names including the words “nature decouvertes” before the registration of the disputed domain name on March 16, 2005.

The Complainant further contends that the differences between the various signs owned by Natures et Decouvertes and the disputed domain name are insufficient to avoid a risk of confusion of the latter with the Complainant’s trademarks and domain names.

The Complainant alleges that the Respondent was not granted any permission to use the disputed domain name. According to the Complainant the Respondent is not known under the name Nature Decouverte and does not own any French trademarks which would include the words “nature et decouverte”.

The Complainant also contends that the Respondent could not ignore its prior rights on the terms used for the disputed domain name, since Natures et Dйcouvertes was well-established in France before the registration date of the disputed domain name and the Respondent is domiciled in France.

According to the Complainant, the Respondent did not use the disputed domain name with a bona fide intention to offer goods and services. Indeed, according to the Complainant, “www.nature-decouverte.net” is routed to the website of the Registrar. The Complainant therefore considers that it does not constitute a fair use of the disputed domain name as it is only a visitor attraction tool.

The Complainant considers that the Respondent was acting in bad faith since it has also registered the domain name <nature-decouverte.com>. Regarding that domain name, on June 17, 2006, the Respondent has indicated to the Complainant that it shall not renew it enabling the Complainant to register it later on.

Finally, the Complainant considers that the Respondent was acting in bad faith since it never replied to the emails sent to the Respondent, whereby Complainant requested the transfer of the disputed domain name.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

In order to prevail, the Complainant must prove the following three elements: (i) the Respondent’s 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 the domain name; and (iii) that the Respondent has registered the domain name and is using it in bad faith (Policy, paragraph 4(a)).

The Respondent has not filed a Response to the Complaint. Pursuant to the Rules, paragraph 5(e), the Panel will decide the dispute based on the complaint.

A. Identical or Confusingly Similar

The Complainant has established that it is a registered trademark owner with respect to the marks NATURE ET DECOUVERTES and NATURE DECOUVERTES.

The disputed domain name is composed of the words “nature” and “decouverte” which are separated with a hyphen.

The differences between the disputed domain name and the Complainant’s trademarks are as follows:

- the “et” ( which means “and”) is replaced by a hyphen;

- the absence of “s” at the end of the word “decouverte”; and

- the use of a specific top-level-domain “.net”.

However, such minor differences are not sufficient to avoid the likelihood of confusion between the disputed domain name and the Complainant’s trademarks.

Indeed, “nature-decouverte” remains very close to “nature et decouvertes”, from a visual, phonetic and intellectual point of view (see Carrefour SA c/ Laretoucherie, WIPO Case No. D2003-0587, considering that there was a likelihood of confusion between “le polygone d’or” and “polygone-or”).

In addition, the deletion of the letter “s” at the end of the word “decouverte” has no phonetic impact and makes little visual difference. In another case involving the domain name <natureetdecouverte.net>, the Panel found that the deletion of the letter “s” did not avoid the likelihood of confusion between the trademarks and the domain name (see Nature et Dйcouvertes v. Dйcouverte 3 Vallйes Ballon d’Alsace, WIPO Case No. D2004-0143).

Finally, the presence of the “.net” generic top-level-domain in the disputed domain name is not a factor for purposes of determining whether or not a disputed domain name is identical to the mark in which the Complainant asserts rights (Telecom Personal v. namezero.com, WIPO Case No. D2001-0015).

Therefore, the Panel finds that the Complainant has proven that the domain name in dispute is identical or at least confusingly similar to the Complainant’s trademarks.

B. Rights or Legitimate Interests

The Respondent has not provided evidence of the type specified in paragraph 4(c) of the Policy, or any other circumstances giving rise to a right of legitimate interest in the domain name. The Complainant asserted that the Respondent had neither a licence nor any other permission to use the disputed domain name.

According to the Complainant the Respondent is not known under the name Nature Decouverte and he does not own NATURE DECOUVERTE trademarks in France. The Panel is satisfied that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which the Respondent has not rebutted.

The Panel therefore concludes that the Respondent has no rights or legitimate interests in the domain name <nature-decouverte.net>.

C. Registered and Used in Bad Faith

According to paragraph 14(b) of the Rules, in the absence of exceptional circumstances, a Panel shall draw inferences as it considers appropriate from the failure of a party to comply with a provision or requirement of the Rules.

In that respect, the Respondent’s failure to answer is to be interpreted as showing that:

- the Respondent does not deny the facts as developed by the Complainant; and

- the Respondent does not deny the conclusions drawn by the Complainant from these facts.

The Respondent has not given any answer to the Complainant’s claim for transfer, nor it seems to the numerous reminders that were sent to him.

Given the fact that the Complainant’s trademarks have acquired a reputation in France, it is unlikely that the Respondent, who is located in France, could not have been aware of the Complainant’s prior rights, when registering the disputed domain name on March 16, 2005. The Respondent is not making any apparent bona fide use of the site, which according to Complainant previously re-directed to the website of the registrar Network Solutions. The site now appears to be inactive and passively held by the Respondent. Nor is there any evidence before the Panel of conceivable good faith use of the domain name by the Respondent.

This is supported by circumstances in which the Respondent, is an individual, who according to the Complainant is not known by the name Nature Decouverte, appears to have registered another domain name <nature-decouverte.com>, which he agreed to deactivate when the Complainant informed him there were risks of confusion with its prior rights.

The Panel therefore concludes that the disputed domain name <nature-decouverte.net> was registered and is being used in bad faith by the Respondent.

7. Decision

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 <nature-decouverte.net> be transferred to the Complainant


Isabelle Leroux
Sole Panelist

Dated: March 9, 2007

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2007/d2007-0097.html

 

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