WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Areva v. Zlxclub, Zhaolaixi
Case No. DME2012-0006
1. The Parties
The Complainant is Areva of Paris, France, represented by Dreyfus & associés, France.
The Respondent is Zlxclub, Zhaolaixi of Guangzhou, Guangdong, China.
2. The Domain Name and Registrar
The disputed domain name <areva-td.me> is registered with Dynadot, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 19, 2012. On July 19, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 20, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy, approved by the doMEn d.o.o (“doMEn”) (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy approved by the doMEn d.o.o (“doMEn”)(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 25, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was August 14, 2012. Upon the request from the Complainant, the proceedings were suspended on July 31, 2012, and were re-instituted on August 30, 2012. The due date for Response was extended to September 13, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 14, 2012.
The Center appointed Ross Wilson as the sole panelist in this matter on September 20, 2012. 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.
On September 26, 2012 the Complainant submitted to the Center a supplemental filing. The Rules allow the Panel to determine the admissibility of further evidence. This Panel has decided not to admit the additional evidence as the supplemental filing does not address any exceptional circumstances.
4. Factual Background
The Complainant is a leading global energy company involved in nuclear power as well as renewable energy. It has operations in Europe, North America, South America and Asia. It has a manufacturing presence in China including offices, industrial/engineering and project facilities. The Complainant has participated in 6 of the 11 nuclear power plants currently in operations in China. In addition 20 of 24 reactors under construction in China use Areva technology. In 2010 the Complainant’s revenue was EUR 9.1 billion.
The Complainant owns numerous AREVA trademarks worldwide. In particular the Complainant has supplied two International Trademark Registrations designating numerous countries including China. The first was registered on November 28, 2001 and the second on July 16, 2004.
The Respondent registered the disputed domain name on November 8, 2011. The disputed domain name points to a webpage offering the disputed domain name for sale.
For some time the Complainant has been seeking from the Respondent the transfer and cancellation of a number of domain names incorporating the Complainant’s trademark. It initially sent a cease and desist letter on November 23, 2011 requesting the transfer of <areva.mx>. Subsequently, on becoming aware of further domain names incorporating the Complainant’s trademark the Complainant requested on January 30, 2012 and February 29, 2012 the cancellation of the disputed domain name along with several others domain names. The Respondent responded initially seeking the payment of EUR 3,000 and later on March 1, 2012 requesting EUR 2,000 for the transfer of two domain names (<areva.mx> and <areva.kr>) registered by the Respondent. The Respondent made the cancellation of a number of other domain names (including the disputed domain name) conditional on the payment of the sum requested. The Complainant declined.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or at least confusingly similar to its trademark AREVA because it reproduces the trademark in its entirety with the exception of the “td” element which corresponds to the name of T&D (Transmission and Distribution) that used to belong to the Complainant and the name of a subsidary “Areva TD”. The Complainant argues that far from reducing the likelihood of confusion, the addition of the term “td” (which has links to the Complainant) increases such risk.
The Complainant considers that the public would reasonably assume that the disputed domain name composed of its trademark is related to the Complainant or owned by the Complainant. Also, “areva” is a distinctive term which increases the likelihood of confusion between the disputed domain name and the Complainant’s trademark.
The Complainant states that the Respondent is not affiliated with the Complainant in any way nor has the Respondent been authorised by the Complainant to use and register the Complainant’s trademark or seek registration of any domain name incorporating the AREVA trademark. The Complainant contends that the Respondent has no rights or legitimate interest in the disputed domain name. The Complainant points out that the registration of the AREVA trademark long preceded the registration of the disputed domain name in 2011.
The Complainant identified a number of domain names reproducing the Complainant’s well-known trademark that the Respondent had registered, namely <areva.mx>, <areva.kr>, <areva-td.me>, <arevatd.com>, <arevawind.com.cn>, <areva.net.cn> and <areva.org.cn>. According to the Complainant these domain names directly infringe the Complainant’s rights as each directs Internet users to a page displaying the Respondent’s email address and an indication relating to the sale of the domain names. The Complainant argues that the domain names in question are so similar to the Complainant’s trademark that the Respondent cannot reasonably pretend it was intending to develop a legitimate activity through their use. Given the fame of the Complainant’s trademark it is the Complainant’s view that the Respondent could not have a legitimate contemplated use for offering goods or services through the domain names including the disputed domain name.
The Complainant contends that in the light of the reputation of the Complainant it is implausible that the Respondent was unaware of the Complainant when the disputed domain name was registered. In fact the choice of the Complainant’s trademark and the “td” element corresponding to the Complainant’s subsidary activities suggests that the Respondent was perfectly aware of the Complainant and its trademark.
Finally, the Complainant argues that bad faith is demonstrated by the Respondent refusing to cancel the disputed domain name and others incorporating the Complainant’s trademark unless the Complainant paid a sum for the transfer of two other domain names (<areva.mx> and <areva.kr>) representing a price far beyond the registration cost of the domain names.
The Respondent did not formally reply to the Complainant’s contentions.
6. Discussion and Findings
The burden is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of 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 provided evidence demonstrating that it has had registered rights in the trademark AREVA since 2001.
The disputed domain name consists of the Complainant’s trademark in its entirety together with the letters
“td” separated by a hyphen and the ccTLD extension “.me”. It has been held in many previous UDRP cases that incorporating a trademark in its entirety is typically sufficient to establish that a domain name is identical or confusingly similar to a registered trademark (see Oakley, Inc. v. Kate Elsberry, Elsberry Castro, WIPO Case No. D2009-1286 and World Wrestling Federation Entertainment, Inc. v. Ringside Collectibles, WIPO Case No. D2000-1306).
The addition of the letters “td” to the Complainant’s trademark, which corresponds to the name of former activities and a subsidiary of the Complainant, cannot be considered distinctive and do not affect the question of identical or confusing similarity. In fact their use increases the likelihood of confusion since the letters could lead Internet users to think that the disputed domain name is related to the Complainant’s activity (see AREVA v. MIC / Hussain, Syed, WIPO Case No. D2010-1098).
The Panel finds that the Complainant’s trademark is readily recognisable within the disputed domain name. Therefore, the Complainant has proven that the disputed domain name is identical or confusingly similar to the trademark in which it has demonstrable rights and in doing so has satisfied the first element of the Policy.
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, rights to or legitimate interests in a domain name can be demonstrated if a respondent:
- before receiving any notice of the dispute, was using the domain name in connection with a bona fide offering of goods or services; or
- has been commonly known by the domain name; or
- is making legitimate noncommercial or fair use of the domain name, without intention for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There is no evidence before the Panel to show that the Respondent has any rights or legitimate interests in the disputed domain name. The Respondent has chosen to use the disputed domain name that reflects the Complainant’s trademark in its entirety without authorisation by the Complainant. Based on the evidence provided by the Complainant the disputed domain name resolves to a website that offers the disputed domain name for sale. No rights or legitimate interests derive from such use of the disputed domain name which incorporates the Complainant’s trademark.
In addition, the Complainant has denied having any connection with the Respondent or providing any authorisation to use its trademark. In Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055, the panel stated, “in the absence of any license or permission from the Complainant to use any of its trademarks or to apply for or use any domain incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the domain name could be claimed by the Respondent”.
The Panel considers the lack of rights or legitimate interests in this case is similar to the circumstances in Areva v. Domains by Proxy, Inc./ Sheng Xiang, WIPO Case No. D2011-0061 where the panel concluded that “when the Respondent registered the disputed domain name, it must have known that AREVA was a trade mark of the Complainant and deliberately registered the disputed domain name precisely because it would be recognised as such”.
Despite the opportunity provided through this administrative procedure (and through the Respondent’s responses to the Complainant’s cease and desist communications) the Respondent has chosen not to rebut the Complainant’s case or assert any rights or legitimate interests in the disputed domain name.
Based on the above, the Panel considers the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel is satisfied that the Complainant has proven the second element of the Policy.
C. Registered and Used in Bad Faith
For the purposes of determining if there was bad faith registration and use, the Panel considered the circumstances of the registration and use of the disputed domain name as set out in paragraph 4(b) of the Policy, noting that it does not impose any limitation on how the registration and use of the domain name in bad faith may be evidenced.
The Panel considers that the Complainant has made a case that the Respondent has registered and used the disputed domain name in bad faith.
Paragraph 4(b) sets out what is to be considered as evidence of the registration and use of a domain name in bad faith including “(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name”. The fact that the disputed domain name points to a webpage that states “This domain is for sale” and the Respondent has been directly seeking from the Complainant sums well in excess of the cost of registering the disputed domain name makes this a clear case of abusive, bad faith cybersquatting.
In the Panel’s view the Respondent’s registration of the disputed domain name represents a deliberate disregard of the Complainant’s trademark rights. Clearly the Respondent knew of the Complainant’s well-known trademark at the time of registration because the Complainant’s mark is used in its entirety in the disputed domain name. As stated in Oakley, Inc. v. Joel Wong/BlueHost.com- INC., WIPO Case No. D2010-0100 “It is inconceivable […] that the Respondent registered the disputed domain name without prior knowledge of the Complainant’s rights”. Also, as expressed in Singapore Airlines Limited v. European Travel Network, WIPO Case No. D2000-0641, where the selection of domain names is so obviously connected to the complainant’s trademark their very use by someone with no connection with the company suggests opportunistic bad faith. Similarly, in Sony Kabushiki Kaisha (also trading as Sony Corporation) v. Inja, Kil, WIPO Case No. D2000-1409, where the respondent registered a number of domain names incorporating a well-known trademark in its entirety, the panel stated, “that it is inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the complainant”.
Noting that the Respondent has not rebutted any of the Complainant’s contentions the Panel considers that the Respondent’s registration of the disputed domain name and offering it for sale were deliberate actions of cybersquatting.
On the basis of the above and the fact that the Respondent has no rights or legitimate interests in the disputed domain name, the Panel is satisfied that the Respondent’s conduct falls within paragraph 4(b)(i) of the Policy. Therefore, the Panel finds that the Complainant has demonstrated that the disputed domain name was registered and used 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 <areva-td.me> be transferred to the Complainant.
Dated: October 5, 2012