France Billet v. Privacy Administrator, Anonymize, Inc.
Case No. D2015-1641
The Complainant is France Billet of Ivry-Sur-Seine, France, represented by Cabinet Santarelli, France.
The Respondent is Privacy Administrator, Anonymize, Inc. of Bellevue, Washington, United States of America (“United States”).
2. The Domain Name and Registrar
The disputed domain name is registered with Epik, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 16, 2015. On September 17, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 18, 2015, 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 Registrar sent further clarification regarding the Respondent’s identity on September 29, 2015.
The Center verified that the Complaint 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 October 7, 2015. In accordance with the Rules, paragraph 5, the due date for Response was October 27, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 28, 2015.
The Center appointed Alistair Payne as the sole panelist in this matter on November 6, 2015. 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, a subsidiary of the FNAC group, has since 2008 operated as a seller of tickets for sporting, musical and leisure events in France. It owns a French word mark registration for FRANCE BILLET under number 94530821, registered on July 25, 1994 together with a number of later combined word and device mark registrations incorporating the FRANCE BILLET mark. It operates through a website at the domain name .
The disputed domain name appears to have first been registered on March 31, 2010, but has changed ownership on numerous occasions since that time. On March 5, 2014, the Complainant sent a cease and desist letter to “Name CAPITAL LLC”, the current registrant at that time and Name Capital LLC replied that the disputed domain name was registered and reserved for a travel portal to France relating to airlines and hotels and without any knowledge of the Complainant’s mark or business and that it had no control over the nature of the links on the parking page. Subsequently the registrant name changed to “Privacy Administrator” and then changed again to “Rob Monster”. On July 13, 2015, the Complainant sent a cease and desist letter to the then current registrant of the disputed domain name, Rob Monster and on July 15, 2015 the registrant responded to say that “the domain is now in our delete cycle…as a fast solution, our backorder service does allow you to bypass the pending-delete cycle”. Following the Complainant’s response that “there are two possible options either proceeding with the abandon right now or transferring the domain name to FNAC” the Complainant received no response and several days later noted that the registrant had changed to the Respondent, Anonymize, Inc. The Complainant sent a further cease and desist letter to the Respondent on August 19, 2015, but has received no response. The disputed domain name resolves to a parking website of links relating to the sale of concert tickets, which is the core business of the Complainant.
5. Parties’ Contentions
The Complainant submits that it owns registered trade mark rights in the FRANCE BILLET mark as noted above and that the disputed domain name wholly incorporates this mark. It says that the addition of an “s” to the mark does not distinguish the disputed domain name from the Complainant’s mark and as a consequence the disputed domain name is confusingly similar to it.
The Complainant submits that it has not licensed or authorised the Respondent’s use of its mark in the disputed domain name and that it is not aware of the Respondent carrying on a legitimate activity under the “france billets” name. It says that by using the disputed domain name to divert traffic to third party websites featuring paid link advertisements, the Respondent is using the Complainant’s trade marks and domain names for its own commercial purposes which demonstrates its lack of a legitimate noncommercial interest in, or fair use of, the disputed domain name.
As far as bad faith is concerned the Complainant submits that the Respondent must have known of the Complainant’s use of the FRANCE BILLET mark and of its ticket sale business when it acquired or registered the disputed domain name. The Complainant says that the use of the disputed domain name to resolve to a website that features what it assumes to be sponsored links in both French and English to websites for competing products exemplifies the Respondent’s bad faith and fulfills the requirements of paragraph 4(b)(iv) of the Policy.
The Complainant further says that the fact that the disputed domain name has been advertised for sale by the Respondent for USD 1,895, where as previously it had been for sale for USD 199, suggests that it has just been registered or acquired for the purposes of re-sale and that the Respondent seeks to generate substantial revenues from it.
In addition the Complainant asserts that based on the number of times that the disputed domain name has been transferred and for example, considering the similarity of address between the Respondent and the immediate past registrant, Rob Monster, the Complainant assumes that transfer has occurred in order to avoid a UDRP complaint being successfully lodged. The Complainant claims this is further evidence of the Respondent’s bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The Complainant has demonstrated that it owns a French word mark registration for FRANCE BILLET registered under number 94530821 on July 25, 1994. The disputed domain name differs from this mark only by the addition of an “s” which does not distinguish the disputed domain name from the Complainant’s mark. As a result the Panel finds that the disputed domain name is confusingly similar to the Complainant’s FRANCE BILLET mark and the Complaint succeeds under the first element of the Policy.
B. Rights or Legitimate Interests
The Complainant has submitted that it has not licensed or authorised the Respondent’s use of its mark in the disputed domain name and that it is not aware of the Respondent carrying out a legitimate activity under the FRANCE BILLETS name. In addition there is no evidence before the Panel to suggest that the Respondent is otherwise known by the disputed domain name.
The Respondent has not rebutted the prima facie case made out by the Complainant under this element and in addition for the reasons set out under the third element below, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and that therefore the Complaint succeeds under this element of the Policy.
C. Registered and Used in Bad Faith
Although the disputed domain name was registered on March 31, 2010 it has, as noted above, changed registrant several times since the Complainant first sent a cease and desist letter to Name Capital LLC on March 5, 2014, and received that company’s response. The most recent transfer from the prior registrant to Rob Monster and notably after the Complainant had sent a cease and desist letter to this registrant on July 13, 2015, occurred on July 15, 2015, the same day that Rob Monster responded by saying “the domain is now in our delete cycle as a fast solution, our backorder service does allow you to bypass the pending delete cycle”.
It appears to the Panel that this is a classic case of “cyberflight” in which a respondent transfers the domain name to a new registrant in order to avoid a complainant initiating proceedings in relation to the domain name. In these circumstances panels have treated the most recent transfer as the relevant date of registration for the purposes of the determination under this element of the Policy. It is clear that as at July 15, 2015, the date of the last transfer, the Complainant’s business under its FRANCE BILLET mark was well developed and its web presence and appearance in search engine results, such as the Google search engine was apparent and therefore the Panel infers that the Respondent was well aware of the Complainant’s mark and business at the date of registration but nevertheless sought to accept transfer of the disputed domain name for its own purposes and in bad faith.
This inference is reinforced by the fact that the Respondent has used the disputed domain name for the purposes of diverting Internet users to a parking page which features what appear to be sponsored links to websites of competitors of the Complainant. Under paragraph 4(b)(iv) of the Policy seeking to use a disputed domain name for commercial gain and for the purposes of confusing Internet users into thinking that they are arriving at the complainant’s site when in fact they are being diverted to competitor sites amounts to evidence of registration and use in bad faith. It appears to the Panel that the Respondent is either seeking to profit from these sponsored links or to obtain commercial advantage by selling the disputed domain name at a profit. In this latter regard the Panel notes that the Respondent has most recently advertised the disputed domain name for sale at USD 1,895, a considerable increase on the original sale price of USD 199.
Overall the Panel finds that the Respondent has registered and used the disputed domain in bad faith and that the Complaint succeeds under this element of the Policy.
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 be transferred to the Complainant.
Date: November 15, 2015