|Complainant||3 Suisses International|
|Date of Decision||07.08.2008|
WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
3 Suisses International v. Département Juridique
Case No. D2008-0534
1. The Parties
The Complainant is 3 Suisses International, France, represented by SELARL Espace Juridique Avocats, France.
The Respondent is Département Juridique , France.
2. The Domain Name and Registrar
The disputed domain name <3susses.com> is registered with Moniker Online Services, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 8, 2008. On April 8, 2008, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On April 15, 2008, Moniker Online Services, LLC transmitted by email to the Center its verification response advising that someone other than the Respondent was listed as registrant and providing contact details.
In response to a notification by the Center on April 22, 2008 that the Complaint was administratively deficient, the Complainant informed the Center that the disputed domain name had been transferred to Complainant just after the Complaint was filed, and asked for a termination of the Proceedings.
On April 29, 2008, the Center asked the Complainant to confirm whether the domain name in issue was under complete control, and if the case, to send a request to terminate the proceedings.
On May 16, 2008, the Complainant confirmed that it was not in complete control of the domain name.
The registrar having informed the Complainant that it was required to keep the domain name on hold during the proceedings, the Complainant finally filed an amendment to the Complaint on June 9, 2008.
The Center verified that the Complaint together with the amendment to 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 June 16, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was July 6, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 7, 2008.
The Center appointed Alexandre Nappey as the sole panelist in this matter on July 24, 2008. 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 holding company part of the 3 SUISSES group. The 3 SUISSES group markets by mail order a wide range of products to consumers, including clothes, domestic appliances, furniture, toys. More than one million of its catalogues are distributed yearly in France.
The Complainant holds numerous trademarks consisting of or including the wording 3 SUISSES, among which the Community trademark n° 000372698 registered on December 29, 1999 for products and services in classes 16, 25, 38 and 39.
The domain name in issue was registered on October 28, 2007. It is resolving a parking page with various hyperlinks arranged by category.
5. Parties' Contentions
The Complainant claims that the disputed domain name is confusingly similar to its trademark 3 SUISSES. It contends that the mere omission of the letter “i” in the domain name does not render the domain name dissimilar to its trademark.
According to the Complainant the respondent has no rights or legitimate interests in the domain name because it:
- has never registered 3 SUISSES or any similar trademark;
- has no business relationships with the Complainant;
- has never been authorized or licensed to use in any way the 3 SUISSES trademark, to appropriate the domain name in issue or to associate itself to the Complainant;
- has used the domain name to divert Internet traffic from the Complainant's website, creating a confusion between the domain name and the 3 SUISSES trademark.
With respect to bad faith, the Complainant claims that the Respondent registered the domain name with the 3 SUISSES trademark in mind.
The Complainant contends that the Respondent is merely capitalizing on the confusion between the domain name and the 3 SUISSES trademark, since the domain name is pointing to a website offering sponsored links, promoting various categories of goods. The Complainant asserts that the Respondent wants to divert Internet users seeking information or products offered by the Complainant and obtain revenues from this diverted traffic.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Notwithstanding the default of the Respondent, it remains up to the Complainant to make out its case in accordance with paragraph 4(a) of the Policy, and to demonstrate that:
(i) the 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 domain name has been registered and is being used in bad faith.
However, under paragraph 14 (b) of the Rules, where a party does not comply with any provision of the Rules, the Panel “shall draw such inferences there from as it considers appropriate”.
Having consideration to the parties' contentions, the Policy, Rules, Supplemental Rules and applicable substantive law, the Panel's findings on each of the above cited elements are the following:
A. Identical or Confusingly Similar
It is clear that the Complainant holds rights on the trademark 3 SUISSES, at least through the Community trademark 3 SUISSES registered in 1999.
The evidence provided with the Complaint clearly demonstrates a wide and long use of the trademark, which has become – at least in France – a well-known trademark. Complainant also provides several French Court decisions where the reputation of the trademark 3 SUISSES has been upheld.
The only difference between the Complainant's trademark and the disputed domain name is that the letter “i” has been omitted from the trademark. Many decisions ruled that minor differences have no effect on the confusing similarity between a trademark and a domain name.
See for instance Aéropostale West, Inc v. Whois Protection, WIPO Case No. D2007-1271, cited by Complainant “slight changes in name may be purposeful misspellings”
See also in very similar circumstances Crédit Industriel et Commercial S.A., and Confédération Nationale du Crédit Mutuel v. Owen Webster, WIPO Case No. D2006-0165, “The disputed domain names are almost identical to the Complainant's trademarks, the only difference being in each case the lack of only one letter”.
Therefore the Panel is satisfied that the Complainant has rights in the 3 SUISSES trademark, and finds that the domain name is confusingly similar to the Complainant's trademark.
B. Rights or Legitimate Interests
The Respondent has no connection or affiliation with the Complainant, who has not licensed or otherwise authorized the Respondent to use or apply for any domain name incorporating the Complainant's trademarks.
The Respondent has not alleged any facts or elements to justify prior rights or legitimate interests in the disputed domain name.
The Respondent does not appear to make any legitimate use of the domain name for non-commercial activities. On the contrary, the Respondent is, for its own commercial gain, diverting Internet users looking for the Complainant's services to the website associated with the disputed domain name. Such use cannot be considered bona fide.
Accordingly, the Panel finds that the Complainant has satisfied the burden of proof with respect to paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Complainant must demonstrate that the disputed domain name has been registered and is being used in bad faith.
As claimed by the Complainant, the Respondent could not have chosen the domain name randomly, having consideration to the reputation of the trademark 3 SUISSES and the slight differences between the domain name in issue and the trademark.
It is therefore the Panel's opinion that the Respondent had actual knowledge of the Complainant and its rights at the time it registered the disputed domain name, and by intentionally removing one letter from the trademark, it registered the domain in bad faith.
Numerous decisions state that actual knowledge of the Complainant at the time of the registration may infer bad faith, see BOUYGUES v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325.
The Panel is then convinced by the evidence provided with the Complaint and the Respondent's default that Respondent tried to take advantage of the Complainant's reputation and goodwill by diverting Internet users and potential customers to a parking page for commercial gain.
Some of the goods and services available on this page are in direct competition with those that are offered by the Complainant, see Six Continent Hotels, Inc v. Domain Park Limited, WIPO Case No. D2007-0313.
Under these circumstances the Panel finds that the domain name is used in bad faith.
Therefore, the Panel is satisfied that the requirement of paragraph 4 (a)(iii) of the Policy is met.
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, <3susses.com> be transferred to the Complainant.
Dated: August 7, 2008