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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Bayard Presse S. A. v. Dealweave / Domain Hostmaster, Customer ID: 51391136717770, Whois Privacy Services Pty Ltd

Case No. D2014-1959

1. The Parties

Complainant is Bayard Presse S. A., of Montrouge, France, represented by Fidal, France.

Respondent is Dealweave, of Columbia, Maryland, United States of America / Domain Hostmaster, Customer ID: 51391136717770, Whois Privacy Services Pty Ltd, of Fortitude Valley, Queensland, Australia.

2. The Domain Name and Registrar

The disputed domain name <wwwnotretemps.com> is registered with Fabulous.com (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 5, 2014. On November 5, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 6, 2014, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on November 6, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on November 7, 2014.

The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), 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 Respondent of the Complaint, and the proceedings commenced on November 10, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was November 30, 2014. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on December 1, 2014.

The Center appointed Francine Tan as the sole panelist in this matter on December 15, 2014. 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

Complainant is a French press and publishing group operating in 16 countries that publishes more than 150 magazines worldwide through its various publishing brands, covering the following market sectors: Youth, Seniors, Religion and Nature. In terms of readership numbers, it lies in the top five of French periodical publishers. Complainant states that it has about 2,100 fulltime staff, 3,000 freelancers and a readership count of 36 million across the world. It operates about 100 websites with a few million Internet visitors from around the world.

Complainant was founded in the 1870s, and in 1966 launched "Notre Temps", which became successful in terms of the Seniors market. Complainant's activities in relation to this market sector are promoted extensively through its official website located at "www.notretemps.com". This domain name was registered on November 2, 1998.

Complainant is also the registrant of several other domain names:

<notre-temps.com> (since March 1, 2004),

<notretemps.org> (since September 23, 2003),

<notretemps.net> (since July 31, 2001),

<notretemps.eu> (since July 3, 2006), and

<notre-temps.com> (since September 23, 2008).

Complainant states that it has nearly 500 trademarks registered throughout the world. Complainant is the registered owner of the mark NOTRE TEMPS. It cited its French trademark registrations (the earliest dating from 1987) and an International trademark registration (dating from May 1986).

The disputed domain name was registered on August 31, 2005. It resolves to a pay-per-click website advertising links to third-party websites.

5. Parties' Contentions

A. Complainant

(i) Complainant asserts that the disputed domain name is confusingly similar to its NOTRE TEMPS mark in which it has rights. The said trade mark is reproduced letter by letter in the disputed domain name except for the addition of the generic prefix "www" which stands for "world wide web". The omission of the dot "." between "www" and Complainant's mark in the disputed domain name is a clear attempt to take advantage of consumers looking for Complainant's website at "www.notretemps.com". This is a case of typosquatting of Complainant's domain name <notretemps.com>. The addition of the generic "www" does not "grant self-distinctiveness to the domain name in issue".

(ii) Complainant asserts that Respondent has no rights or legitimate interests in respect of the disputed domain name. Respondent is not and neither has it been known under the name NOTRE TEMPS. Further, Respondent is not in any way related to Complainant's business and has never been authorized or permitted by Complainant to register or use the disputed domain name. In registering the disputed domain name, Respondent is generating traffic to an inactive website in an attempt to confuse Internet users.

(iii) Complainant asserts Respondent registered and is using the disputed domain name in bad faith. Complainant has a strong reputation globally in the field of press and publishing and the NOTRE TEMPS mark is well known in relation to the Seniors sector. Consequently, one can presume that Respondent "registered the disputed domain name for the purpose of selling it to Complainant or one of its competitors, or that it was intended to be used in some way to attract for commercial gain users to the website by creating a likelihood of confusion with the Complainant's mark". It is highly unlikely that Respondent chose the disputed domain name by chance when it is so closely identical to Complainant's domain name <notretemps.com> which was registered in 1998. Internet users may therefore be misled into believing that Respondent's website is Complainant's official website.

B. Respondent

Respondent did not reply to Complainant's contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel agrees that the disputed domain name is confusingly similar to Complainant's NOTRETEMPS trade mark. The addition of the letters "www" does not remove the confusing similarity with Complainant's mark. (See, e.g. Youbet. com Inc v. Grand Slam Company WIPO Case No. D2002-0711 where the domain name in issue was <wwwyoubet.com> and the complainant had rights to the marks YOUBET and YOUBET.COM. )

The first element of paragraph 4(a) of the Policy has therefore been satisfied by Complainant.

B. Rights or Legitimate Interests

The Panel is of the view that Complainant has established a prima facie case that Respondent has no rights or legitimate interests in respect of the disputed domain name. The Panel has been mindful of the fact that "notre temps" per se is a generic French term which means "our time" or "our weather" and therefore, generally speaking, there is no reason why any person could not choose to adopt such a term in a domain name registration. However, Complainant has set forth a prima facie case to show it has a very strong reputation in the mark NOTRE TEMPS and its related publishing business. Complainant has also shown that NOTRE TEMPS is a registered and extensively used trademark. Having done so, the onus shifts to Respondent to traverse Complainant's assertions and show that it does indeed have rights or legitimate interests. Respondent has failed to do so. The Panel also cannot disregard the fact that in this case, the disputed domain name is uncannily and deceptively close to Complainant's domain name <notretemps.com>, with the addition of "www" at the beginning. The Panel detects a trace of bad faith which Respondent has not dispelled with any explanation.

The Panel therefore finds that the second element of paragraph 4(a) of the Policy has been satisfied by Complainant.

C. Registered and Used in Bad Faith

The Panel is of the view, considering the circumstances of this case, that the disputed domain name was registered and has been used in bad faith. The passive holding of a domain name without any attempt by the respondent to contact or to sell it to the trademark owner does not prevent a finding of bad faith under paragraph 4(a)(iii) of the Policy. "The panel must examine all the circumstances of the case to determine whether the respondent is acting in bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed, and the registrant's concealment of its identity. "(See paragraph 3.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition. )

The Panel is of the view that the cumulative circumstances of this case lead to a finding of bad faith registration and use of the disputed domain name: (i) Complainant's NOTRE TEMPS mark and its related business are widely known with a strong reputation; (ii) Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name; (iii) Respondent has not made any attempt to refute the claims and submissions made by Complainant; (iv) Respondent has sought to remain anonymous or to conceal its identity by using a privacy service; and (v) the typosquatting feature of the disputed domain name makes it difficult for the Panel to accept the possibility that Respondent did not know of Complainant's domain name <notretemps.com> and trademark NOTRE TEMPS when it registered the disputed domain name.

In the premises, the Panel is satisifed that Complainant has established the third element of paragraph 4(a) o the Policy.

7. Decision

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 <wwwnotretemps.com> be transferred to Complainant.

Francine Tan
Sole Panelist
Date: December 18, 2014

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