WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Mr. Michel Teman v. Domain Admin, Whois Privacy Corp.

Case No. D2017-0504

1. The Parties

The Complainant is Mr. Michel Teman of Paris, France, represented by Cabinet B & S − Avocats à la Cour, France.

The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, Bahamas.

2. The Domain Names and Registrars

The disputed domain names <michelteman.info>, <michelteman.net>, <michelteman.org> and <michel-tenam.com> ("Disputed Domain Names") are registered with Internet Domain Service BS Corp ("Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 10, 2017. On March 10, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Names. On March 13, 2017, 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 Complainant filed with the Center three amendments to the Complaint on March 29, 2017, March 31, 2017 and April 4, 2017.

The Center verified that the Complaint together with the three amendments to the 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 5, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 25, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 26, 2017.

The Center appointed Gabriela Kennedy as the sole panelist in this matter on May 8, 2017. 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 an individual based in France who has been providing services in the Information Technology ("IT") industry for nearly 30 years. The Complainant markets his services through several domain names that he registered in 2014 (including <michelteman.com> and <michel-teman.com>), and has been featured in several news articles. He also regularly speaks and acts as a panelist at conferences worldwide. In July 24, 2015, the Complainant established a company in France called "Teman Michel".

The Disputed Domain Names were registered by the Respondent on August 8, 2016. The Disputed Domain Names are being used to resolve to websites that allege that the Complainant has committed financial crimes.

5. Parties' Contentions

A. Complainant

The Complainant's contentions can be summarized as follows:

(a) The Complainant has been a businessman in the IT industry for nearly 30 years. The Complainant markets his services through several domain names that he registered in 2014 (including <michelteman.com> and <michel-teman.com>). He has been mentioned in several news articles and regularly speaks and acts as a panelist at conferences worldwide. In July 24, 2015, the Complainant established a company in France called Teman Michel to provide financial advisory services. The Complainant is also a director of the SYNTEC Federation, which represents about 1,250 French groups and companies in the engineering, computer services, education and consulting and vocational training industry. In light of the foregoing, the Complainant claims to have unregistered trade mark rights in his personal name, i.e., MICHEL TEMAN.

(b) The Disputed Domain Names are confusingly similar to the Complainant's unregistered MICHEL TEMAN trade mark. The Disputed Domain Names incorporate the Complainant's unregistered MICHEL TEMAN trade mark in its entirety, save for <michel-tenam.com>. The difference between <michel-tenam.com> and the Complainant's unregistered MICHEL TEMAN trade mark is minor and is not sufficient to distinguish it from the Complainant's trade mark.

(c) The Respondent is not affiliated with the Complainant and does not have the Complainant's authorization to use the Complainant's MICHEL TEMAN trade mark. The underlying registrant has registered the Disputed Domain Name using a privacy service provider to hide his true identity and to prevent the Complainant from contacting him. The Respondent never provided a substantive response to the Complainant's cease and desist letter dated February 27, 2017.

(d) The Complainant claims that the Respondent must have been aware of the Complainant when it registered the Disputed Domain Names in light of the Complainant's reputation in the IT industry. Even if the Disputed Domain Names were registered and used by the Respondent to criticize the Complainant, the right to criticize does not mean that the Respondent has the right to register domain names that are identical, and in one case confusingly similar to the Complainant's MICHEL TEMAN trade mark. Therefore, the Respondent cannot be said to be making a legitimate noncommercial or fair use of the Disputed Domain Names.

(e) The Respondent registered and is using the Disputed Domain Names in bad faith as they will deceive users into believing the resulting websites are authorized by the Complainant and will also disrupt the Complainant's business. The Respondent has also used a privacy shield service to hide its true identity from the Complainant, which is further evidence of bad faith. It is implausible that the Respondent was not aware of the Complainant at the time it registered the Disputed Domain Name, as they are mostly identical to the Complainant's MICHEL TEMAN trade mark and the Complainant is well−known. The Disputed Domain Names will inevitably result in a diversion of traffic away from the Complainant's own websites to the Respondent's websites.

B. Respondent

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

6. Discussion and Findings

Under paragraph 4(a) of the Policy, the Complainant is required to prove each of the following three elements:

(i) the Disputed Domain Names are identical or confusingly similar to a trade mark 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 Names; and

(iii) the Disputed Domain Names have been registered and are being used by the Respondent in bad faith.

Although failure to file a Response by Respondent will not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from such default. The Panel is also entitled to accept all reasonable and supported allegations and inferences flowing from the Complaint as true (see Entertainment Shopping AG v. Nischal Soni, Sonik Technologies, WIPO Case No. D2009-1437; and Charles Jourdan Holding AG v. AAIM, WIPO Case No. D2000-0403).

A. Identical or Confusingly Similar

It is well-established that common law or unregistered trade mark rights can be found under the Policy to exist in a personal name, where the personal name has been used in trade or commerce (see Dr. Michael Crichton v. In Stealth Mode, WIPO Case No. D2002-0874). As stated in Arthur Golden v. Galileo Asesores S.L., WIPO Case No. D2006-1215, the factors that a panel might consider when determining whether a complainant can claim common law rights in his/her personal name include:

"(a) whether the name is common (which reduces the possibility of acquiring secondary meaning − see Gordon Sumner, p/k/a Sting v. Michael Urvan, WIPO Case No. D2000-0596); (b) whether the name was used in connection with goods or services in a commercial context; and (c) the time period over which the name was so used."

The Panel accepts that the Complainant has unregistered rights in his personal name (Michel Teman), based on the following:

(a) The Complainant has been using his name in connection with promoting services under that moniker in the IT industry;

(b) The Complainant is the director of SYNTEC Federation, which represents about 1,250 French groups and companies in the engineering, computer services, education and consulting and vocational training industry;

(c) The Complainant established a company under his own name, "Teman Michel", in France in July 24, 2015, for the purposes of providing financial advisory services;

(d) The Complainant and his business activities have been featured in many press articles;

(e) The Complainant is a regular speaker and panelist at various IT conferences; and

(f) The Complainant has registered several domain names under his own name since 2014, for the purposes of promoting his commercial activities (including <michelteman.com> and <michel−teman.com>).

The above shows that the Complainant has taken steps to market and promote himself commercially, and is likely well-known in the IT industry.

The Disputed Domain Names <michelteman.info>, <michelteman.net> and <michelteman.org> incorporate the Complainant's MICHEL TEMAN mark in its entirety. The Disputed Domain Name <michel-tenam.com> also incorporates Complainant's MICHEL TEMAN mark, save that the letter "n" has been used instead of the letter "m", and a hyphen has been inserted in the middle of the domain name.

It is a well-established rule that a domain name which contains a common or obvious misspelling of a trade mark will normally be found to be confusingly similar to such trade mark, where the misspelled trade mark remains the dominant or prominent element of the domain name (Fuji Photo Film U.S.A., Inc. v. LaPorte Holdings, WIPO Case No. D2004-0971). In this case, the use of the letter "n" instead of the letter "m" in the last word of the Disputed Domain Name<michel-tenam.com> adds no distinctive element and appears to be a clear case of "typo squatting". The hyphen added between the words "michel" and "tenam" in the Disputed Domain Name also does nothing to distinguish the Disputed Domain Name from the Complainant's MICHEL TEMAN trade mark. The Panel therefore finds that the Disputed Domain Names are confusingly similar to the Complainant's trade mark.

Furthermore, in making an enquiry as to whether a trade mark is identical or confusingly similar to a domain name, the domain extension, in this case ".com" should generally be disregarded (see Rohde & Schwarz GmbH & Co. KG v. Pertshire Marketing, Ltd., WIPO Case No. D2006-0762).

The Panel finds that paragraph 4(a)(i) of the Policy is satisfied.

B. Rights or Legitimate Interests

Paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") states that once a complainant establishes a prima facie case in respect of the lack of rights or legitimate interests of a respondent, the respondent then carries the burden of demonstrating that it has rights or legitimate interests in the domain name. Where the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.

The Panel accepts that the Complainant has unregistered rights in the MICHEL TEMAN trade mark which pre-date the registration of the Disputed Domain Names, and the Complainant has never authorised the Respondent to use his trade mark. Accordingly, the Panel is of the view that a prima facie case has been established and it is for the Respondent to prove that it has rights or legitimate interests in the Disputed Domain Names. As the Respondent has not submitted a Response to the Complainant's contentions, the Panel will assess the case based on the reasonable inferences that can be drawn from the Complainant's evidence.

Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights or legitimate interests in the Disputed Domain Names by demonstrating any of the following:

(i) before any notice to them of the dispute, the Respondent's use of, or demonstrable preparations to use the Disputed Domain Names or a name corresponding to the Disputed Domain Names was in connection with a bona fide offering of goods or services; or

(ii) the Respondent has been commonly known by the Disputed Domain Names, even if they have acquired no trade mark or service mark rights; or

(iii) the Respondent is making a legitimate noncommercial or fair use of the Disputed Domain Names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.

The Respondent has not provided any evidence to demonstrate that it has become commonly known by the Disputed Domain Names, or a name corresponding to it.

The Disputed Domain Names resolve to websites that criticize the Complainant ("Respondent Websites"). The Respondent Websites allege that the Complainant has committed financial crimes, including fraud. Two of the Respondent Websites feature a photograph of the Complainant with either a large "wanted by FBI and Interpol" message or an image of prison bars, and include details of the Complainant's alleged crimes. All of the Respondent Websites include alleged testimonials from several (possibly pseudonymous) individuals claiming to be victims of the Complainant and stating that he should be imprisoned.

In circumstances where a disputed domain name that is identical (or in the case of one domain name here confusingly similar) to a mark is being used for genuine noncommercial free speech, then panels tend to find that a respondent's right to criticize does not necessarily extend to registering and using a domain name that is identical or confusingly similar to the complainant's trademark. That is especially the case if the respondent is using the trademark alone as the domain name (i.e., <trademark.tld>) as that may be understood by Internet users as impersonating the trademark owner.

The Panel is inclined to follow this view. The Disputed Domain Names are identical (or in one case virtually identical) to the Complainant's MICHEL TEMAN trade mark, and may mislead Internet users into believing that they are associated with the Complainant and/or will resolve to the official website of the Complainant. The Disputed Domain Names do not include any additional word or term that may identify them as resolving to a criticism website. Therefore, the Panel finds that the Respondent is using the Disputed Domain Names to falsely convey an association with the Complainant in order to divert traffic to the Respondent Websites. By the time Internet users land on the Respondent Websites, they have already been exposed to the misrepresentation inherent in the Disputed Domain Names.

Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Names and the Complainant has satisfied paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The registration of a domain name to resolve to a website which contains derogatory comments or adverse information about a complainant does not in itself constitute bad faith, and whether this is considered to be in bad faith will depend on the facts of each case.

It is apparent that the Respondent registered the Disputed Domain Names in order to criticise the Complainant and to make allegations that the Complainant has committed criminal offences. The Disputed Domain Names are identical to the Complainant's MICHEL TEMAN trade mark (save for a one-letter difference in relation to the Disputed Domain Name <michel-tenam.com>), and they do not incorporate any other words to indicate that they are not associated with the Complainant and/or that they resolve to a criticism website. This therefore supports a presumption that the Respondent registered the Disputed Domain Names to mislead users into believing that they would resolve to websites affiliated with or operated by the Complainants, in order to divert users who are searching for the Complainant. The contents of the Respondent Websites are clearly intended to put users off from doing business with the Complainant. As such, the Panel finds that the Disputed Domain Names were registered and are being used by the Respondent to disrupt the business of the Complainants, which in the circumstances amounts to bad faith.

The Panel additionally notes that in the absence of a response it is impossible to ascertain any possible Respondent defenses; the Panel also notes that the registration of multiple domain names is not compatible with a normal good-faith noncommercial criticism.

Accordingly, the Panel finds that paragraph 4(a)(iii) of the Policy has been satisfied.

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 Names <michelteman.info>, <michelteman.net>, <michelteman.org> and <michel-tenam.com> be transferred to the Complainant.

Gabriela Kennedy
Sole Panelist
Date: May 12, 2017