WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
La Maison Coloniale Int. v. Michael Fournier
Case No. D2007-0643
1. The Parties
The Complainant is La Maison Coloniale Int., Paris, France, represented by Cabinet Vittoz, France.
The Respondent is Michael Fournier, Toulouse, United States of America.
2. The Domain Name and Registrar
The disputed domain name <maisoncolonial.com> is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 27, 2007. On May 1, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On that same date, eNom 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 (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 May 9, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 29, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 30, 2007.
The Center appointed Christophe Imhoos as the sole panelist in this matter on June 5, 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 Complainant is the owner of the trademark LA MAISON COLONIALE registered in France and various other countries, including the United States of America and Canada, as early as 1997 (Annexes C and F to the Complaint).
The Complainant or its Chief Executive is also the owner of the following domain names: <lamaisoncolonoiale.com> registered on August 4, 1998, <la-maison-coloniale.com> registered on June 1, 2000, <lamaisoncoloniale.fr> registered on October 5, 2005, and <la-maison-coloniale.eu> registered on April 24, 2006 (Annex D to the Complaint).
The disputed domain name was registered on May 7, 2005 (Annex A to the Complaint).
5. Parties’ Contentions
The Complainant’s main arguments are the following.
(i) The domain name is identical or confusingly similar to a trademark in which the Complainant has rights.
The domain name at stake is confusingly similar and practically identical to the Complainant’s trademark. The single differences between the Complainant’s trademark LA MAISON COLONIALE and the disputed domain name <maisoncolonial.com> are the French term “la” (equivalent in English to “the”) and the final letter “e” of the word COLONIALE.
The removal of “la” and the letter “e” do not alleviate the virtual identity of the domain name with Complainant’s trademarks since the disputed domain name reproduces the main element of the Complainant’s trademark, “maison coloniale”.
Given the unique character of the Complainant’s trademark LA MAISON COLONIALE and the practically imperceptible distinction between the mark and the disputed domain name, consumers, on seeing the domain name used also in connection with the sale of furniture, will believe it to be related to the Complainant.
(ii) The Respondent has no rights or legitimate interests in respect of the domain name.
There is no relationship between the Complainant and the Respondent that would give rise to any license, permission or other right by which the Respondent could own or use any domain name incorporating the Complainant’s trademark.
Its unique concept on the creation of furniture, sofas and decorative objects of ethnic inspiration, the development of its related brand worldwide through stores and advertisement and its financial expansion (Annexes H to L to the Complaint) entitle the Complainant to exercise its legitimate interests in the use of the mark LA MAISON COLONIALE to designate a website relating to the sale of furniture.
(iii) The domain name was registered and is being used in bad faith.
The domain name in dispute has been registered by the Respondent in bad faith as the latter could not ignore the Complainant’s trademarks in the field, in particular, eight years after the Complainant begun using the trademark LA MAISON COLONIALE, well-known in France and abroad.
The Complainant’s legal counsel wrote a desist letter (Annex M to the Complaint) to the Respondent which was returned because of an erroneous address that mentioned as city Toulouse in France and a United States postal code which is further evidence of bad faith registration.
In addition, the Respondent provides on the disputed website links to other websites where competitive products (furniture, sofas) are offered for sale (Annex N to the Complaint). Such behavior corresponds to the criteria set out at paragraph 4(b)(iv) of the Policy and recognized by precedents which have affirmed that a disputed domain name is used in bad faith when the links are apparently to competitive websites, especially when there is no indication that the links are not sponsored by or affiliated with the relevant trademark owner (Wal-Mart Stores, Inc. v. Whois Privacy, Inc., WIPO Case No. D2005-0850).
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth three requirements, which have to be met for the Administrative Panel to order the transfer of the disputed domain name to the Complainant. Those requirements are that:
(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) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the Respondent’s domain name has been registered and is being used in bad faith.
The Complainant must prove in the administrative proceeding that each of the aforesaid three elements is present so as to warrant relief, according to paragraph 4(a) of the Policy.
The Panel has to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable, pursuant to paragraph 15(a) of said Rules.
In accordance with paragraph 14(b) of the Rules, if the Respondent does not submit a Response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the Complaint.
A. Identical or Confusingly Similar
The Complainant has established its rights in the trademark LA MAISON COLONIALE (Annexes C and F to the Complaint).
The Complainant’s trademark LA MAISON COLONIALE is obviously confusingly similar to the domain name <maisoncolonial.com>. The mere absence of “la” and “e” at the beginning and end of the denomination does not affect that finding insofar as the domain name in question can be considered as containing a minor misspelling of Complainant’s trademark. The letters inversion/suppression/additions in the disputed domain name do not eliminate any risk of confusion with the Complainant’s trademark.
The Respondent’s conduct can be considered as typosquatting, “taking advantage of common misspelling made by Internet users who are looking for a particular provider of goods or services, in order to obtain some benefit therefrom” (Expedia, Inc. v. Alvaro Collazo, WIPO Case No. D2003-0716; InfoSpace, Inc. v. Double Down Magazine, WIPO Case No. D2000-1474). The risk of confusion is reinforced by the fact that the disputed domain name resolves to a webpage containing hyperlinks to websites operating in the scope of sale of furniture and other related items (see Société Air France v. Bing G Glu, WIPO Case No. D2006-0834; Apagor Distribution S.A.S. v. Richard J., WIPO Case No. D2006-1567).
For the above reasons, the Panel finds that the disputed domain is confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances, if found by the Panel to be proved based on its evaluation of all evidence submitted, shall demonstrate rights to or legitimate interests in the domain name in dispute. Those circumstances are described as follows:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Respondent, in not responding to the Complaint, has failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights to and/or legitimate interests in the domain name in dispute. This entitles the Panel to draw any such inferences from such default as it considers appropriate pursuant to paragraph 14(b) of the Rules (see e.g., Talk City, Inc. v. Michael Robertson, WIPO Case No. D2000-0009 or Isabelle Adjani .v. Second Orbit Communications, Inc., WIPO Case No. D2000-0867). The Complainant should nevertheless make out a prima facie case that the Respondent lacks rights or legitimate interests (see Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).
The Complainant does not appear to have granted any license or to have otherwise permitted the Respondent to use the Complainant’s trademark or to apply for any domain name incorporating the Complainant’s trademark. Moreover, the Respondent is not known by the domain name at stake.
Under these circumstances and absent evidence to the contrary, the Panel is unable to find any evidence that would tend to establish that the Respondent has rights or legitimate interests in respect of the disputed domain name.
Furthermore, as pointed out by the Complainant in its Complaint, the hyperlinks forwarding to websites operating in the scope of sale of furniture and other related items, in direct competition to those of the Complainant, and to which the disputed domain name is pointing is not a bona fide offering of goods or services under paragraph 4(c)(i) of the Policy or a non-commercial or fair use under paragraph 4(c)(iii) of the Policy (Société Air France v. Bing G Glu, WIPO Case No. D2006-0834; Apagor Distribution S.A.S. v. Richard J., WIPO Case No. D2006-1567).
For the above reasons, the Panel finds that the Respondent does not have rights or legitimate interest with respect to the domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances that evidence registration and use of a domain name in bad faith. Anyone of the following conduct is sufficient to support a finding of bad faith:
(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 the Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.
As already mentioned, the Respondent did not file any response to the Complaint, failing thereby to invoke any circumstance which could demonstrate his good faith in the registration or use of the domain name in issue.
Nevertheless, the Panel still has the responsibility of determining which of the Complainant’s assertions are established as facts, and whether the conclusions asserted by the Complainant can be drawn from the established facts (see Harvey Norman Retailing Pty Ltd v. Oxford-University, WIPO Case No. D2000-0944).
The Complainant has relied on paragraph 4(b)(iv) of the Policy to characterize the Respondent’s conduct. Actual evidence, i.e., the contents of the website of the disputed domain name, shows that the Respondent is offering the same kind of services of those of the Complainant under the circumstances described above, creating thereby a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website and services (see Apagor Distribution S.A.S. v. Richard J., WIPO Case No. D2006-1567).
Such conduct, in the Panel’s view, has to be considered, prima facie, as bad faith registration and use pursuant to paragraph 4(b)(iv) of the Policy.
Finally, bad faith registration and use is further suggested by the fact, as rightly pointed out by the Complainant, that the Respondent has concealed its true identity as domain name holder (see Annex A to the Complaint), strongly indicating a bad faith intention (see e.g. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; see also Flowil International Lighting (Holding) B.V., SLI Sylvania Europe v. Sylvania Lighting International, WIPO Case No. D2006-0687) pursuant to the general meaning of paragraph 4(b) of the Policy.
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 <maisoncolonial.com> be transferred to the Complainant.
Dated: June 19, 2007