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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

FLUNCH v. Domain Admin, Hush Whois Protection Ltd.

Case No. D2020-1871

1. The Parties

The Complainant is FLUNCH, France, represented by Scan Avocats AARPI, France.

The Respondent is Domain Admin, Hush Whois Protection Ltd., Seychelles.

2. The Domain Name and Registrar

The disputed domain name <flunch-traiteur.com> is registered with Key-Systems GmbH (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 17, 2020. On July 20, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 21, 2020, 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 (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 July 29, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 18, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 19, 2020.

The Center appointed George R. F. Souter as the sole panelist in this matter on August 25, 2020. 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 a French company which is part of a restaurant chain, founded in 1971. It currently operates around 200 outlets trading under its FLUNCH trademark throughout France, and also trades in other countries, including Spain, Italy, Portugal, Russia Federation, and Poland. In 2017, its turnover was around EUR 757 million, and it employed over 10,000 people. In the 2010’s it diversified, through the creation of FLUNCH TRAITEUR, a catering service available throughout France, which offers festive food menus on a take-away or delivery basis.

The Complainant has provided the Panel with details of its trademark registrations, including French registration number 3735937, applied for on May 5, 2010, in respect of its FLUNCH TRAITEUR trademark, and European Union registration number 010401792, applied for on November 9, 2011, in respect of its FLUNCH trademark.

The disputed domain name was registered on August 17, 2016, and resolves to a parking page containing relevant links to the Complainant’s business, which links also lead to websites of the Complainant’s competitors, causing significant harm to the Complainant.

5. Parties’ Contentions

A. Complainant

The Complainant alleges that the disputed domain name is confusingly similar to its FLUNCH TRAITEUR trademark, containing the Complainant’s trademark in its entirety, differing from the Complainant’s trademark only by the insertion of a hyphen conjoining the words FLUNCH and TRAITEUR.

The Complainant alleges that the Respondent, to the best of the Complainant’s knowledge, is not now or has ever been generally known by the disputed domain name, and lacks rights or legitimate interests in the disputed domain name, in particular that the Complainant has never granted permission to the Respondent to use its FLUNCH TRAITEUR trademark in connection with a domain name registration, or otherwise.

The Complainant alleges that the disputed domain name was registered in bad faith, and is being used in bad faith in connection with the Respondent’s use of the disputed domain name in connection with a parking page leading to competitors’ websites, to the Complainant’s detriment.

B. Respondent

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

6. Discussion and Findings

Paragraph 4(a) of the Policy lists three elements that the Complainant must prove to merit a finding that the disputed domain name be transferred to the Complainant:

(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 Panel is satisfied from the information provided that the Complainant has sufficient rights in its FLUNCH TRAITEUR trademark for the purposes of these proceedings.

It is well-established in prior decisions under the UDRP, with which the Panel agrees, that a generic Top-Level Domain (“gTLD”) indicator is irrelevant when comparing a trademark with a disputed domain name. Accordingly, the Panel considers the “.com” indicator to be irrelevant in the circumstances of the present case, and so finds.

It has been well-established in prior decisions under the UDRP that a disputed domain name which wholly contains a complainant’s well-known trademark together with the mere addition of descriptive or non distinctive elements is insufficient to avoid a finding of confusing similarity between a trademark and a disputed domain name. In the circumstances of the present case, the Panel considers that the mere insertion of a hyphen conjoining the words FLUNCH and TRAITEUR in the Complainant’s trademark, which would not materially affect the appearance of the Complainant’s mark, is clearly the addition of nothing more than a non distinctive element, and clearly does not distract from the Complainant’s trademark sufficiently to avoid a finding of confusing similarity between the Complainants trademark and the disputed domain name.

The Panel, accordingly, finds that the disputed domain name is confusingly similar to the Complainant’s FLUNCH TRAITEUR trademark, and that the Complainant has satisfied the test of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

It is the consensus view of UDRP panels, with which the Panel agrees, that a prima facie case advanced by the complainant will generally be sufficient for the complainant to be deemed to have satisfied the requirement of paragraph 4(a)(ii) of the Policy, provided the respondent does not come forward with evidence demonstrating rights or legitimate interests in the domain name and the complainant has presented a sufficient prima facie case to succeed under paragraph 4(a)(ii) of the Policy.

The Panel considers the submissions put forward by the Complainant as sufficient to be regarded as a prima facie case, and the Respondent did not take the opportunity to advance any claim of rights or legitimate interests in the disputed domain name to rebut this prima facie case.

Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

The Panel is of the view that the finding that a respondent has no rights or legitimate interests in a disputed domain name can lead, in appropriate circumstances, to a finding of registration of a disputed domain name in bad faith. The circumstance of the present case, in which the Panel is convinced that the Complainant’s distinctive FLUNCH TRAITEUR trademark was deliberately appropriated in the disputed domain name, are such that the Panel concludes that a finding of registration in bad faith is justified, and so finds.

It is well-established in prior decisions under the Policy that the use of a disputed domain name in connection with a website with links to pay-per-click links and goods or services competing with those of the Complainant is sufficient to justify a finding of use in bad faith under paragraph 4(b)(iv), and, in the circumstances of the present case, the Panel so finds.

Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of 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 <flunch-traiteur.com> be transferred to the Complainant.

George R. F. Souter
Sole Panelist
Date: September 7, 2020

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