Compagnie Générale des Matières Nucleaires (COGEMA) v. Greenpeace International

WIPO Arbitration

and Mediation Center

ADMINISTRATIVE

PANEL DECISION

Compagnie

Generale des Matieres Nucleaires v. Greenpeace International

Case No.

D2001-0376

1. The Parties

The Complainant is

Compagnie Generale des Matieres Nucleaires, 2, rue Paul Dautier, BP 4, 78141

VELIZY Cedex, France.

The Respondent is Greenpeace

International, Keizersgracht 176, 1016 DW.. Amsterdam, Netherlands.

2. The Domain Name and

Registrar

The Domain Name is

<cogema.org>.

The Registrar is <Gandi>.

3. Procedural History

The Complaint was received

by WIPO by email on March 15, 2001, and in hardcopy form on March 16, 2001.

WIPO has verified that the Complaint satisfies the formal requirements of

the Policy, the Rules and the Supplemental Rules and that payment was properly

made. The Administrative Panel ("the Panel") is satisfied that

this is the case.

The Complaint was properly

notified in accordance with the Rules, paragraph 2(a). The Registrar, Gandi,

has confirmed that "cogema.org" ("the Domain Name")

is registered with it in the name of Greenpeace International ("the

Respondent"). The Registrar has further confirmed that the Policy is

applicable to the Domain Name.

On March 26, 2001,

WIPO notified the Respondent of the Complaint in the usual manner and informed

the Respondent inter alia that the last day for sending its Response to

the Complainant and to WIPO was April 14, 2001.

On April 2, 2001, the

Respondent responded with a document entitled "Respondent’s Preliminary

Motions" in which it requested (a) a non-French national as panelist

(on the basis that it has the right to a fair hearing), (b) the removal

from the Complaint of two passages, one reading "the alleged fame and/or

notoriety of the alleged trade mark COGEMA" and the other reading "…[t]he

systematic demonstrations, accusations, and actions that the Respondent

performed against the company [i.e. Complainant] …" (on the grounds

that those passages are "irrelevant and/or otherwise prejudicial",

(c) an order that the Complainant number the paragraphs of the Complaint

"properly" (to enable the Respondent more readily to answer each

and every allegation point by point) and (d) an extension of time for filing

the Response.

WIPO responded on April

3, 2001, stating that, because the Center was not in a position to accept

Respondent’s motions, the extension could not be granted. The rest of the

matters were left to the Panel to deal with.

On April 12, 2001,

the Response was received by WIPO. On April 26, 2001, the Complainant lodged

with WIPO a document entitled "Observations Regarding the Response

of Greenpeace International"

The Panel was properly

constituted. The undersigned Panelist submitted a Statement of Acceptance

and a Declaration of Impartiality and Independence.

No further submissions

were received by WIPO or the Panel, as a consequence of which the date scheduled

for the issuance of the Panel’s Decision, is May 15, 2001.

4. Factual Background

The Complainant is a French

based company engaged in the nuclear fuel industry, which operates under the

acronym COGEMA. Its website is at <www.cogema.fr>

The Respondent is the

governing body of the worldwide Greenpeace environmental movement.

The Respondent registered

the Domain Name on or about July 4, 2000.

On December 22, 2000,

the Complainant (through its attorney) wrote to the Respondent drawing the

Respondent’s attention to its trade mark rights and demanding transfer of

the Domain Name. On February 1, 2001, not having received a reply, the Complainant’s

attorney wrote to the Respondent informing the Respondent that it proposed

to launch this Complaint. On February 12, 2001, the Respondent replied,

explaining the delay. The letter continued as follows:

"Please be informed

that as a campaigning organisation Greenpeace reserves the right to engage

in freedom of expression on the internet on matters of public interest

in particular those matters which affect the environment. As you are aware,

your client, Cogema, as a nuclear reprocessing company, is responsible

for discharging radioactive waste into the North Sea.

For these reasons, Greenpeace

has reserved the domain name "cogema.org" in order to engage in legitimate

and peaceful protest on the internet. Considering the growing success Greenpeace

has had in engaging dialogue on our own website regarding the campaign to stop

nuclear processing, we may be willing to discuss terms under which we would

transfer the "cogema.org" domain name site to your client. If you

would be interested in this matter, in particular before the ICANN arbitration

process, we would be most obliged."

5. Parties’ Contentions

A. The Complainant’s contentions

are as they appear in the following extracts from the Complaint:

The complaint is based

on :

- the well-known

trade name COGEMA of the Complainant.

- the sixty-eight

(68) notorious trademarks "COGEMA" filed, registered and

used all over the world, in no less than 26 countries :

These trademarks are

enjoying repute, insofar as they have been used since 1992 at least and

are subject to wide advertising campaigns in the entire world. The trademark

COGEMA is the house mark of the Complainant.

The factual and legal

grounds on which the complaint is made are the following :

(1) The Domain

Name is identical to the famous trade name COGEMA of the Complainant

and to the 68 notorious trademarks COGEMA filed, registered and used

all over the world by the Complainant.

(2) It is

obvious that the Respondent has no rights or legitimate interests

in respect of the Domain Name.

The Complainant

and the Respondent have no legal link between them (subsidiary, successors,

assigns, licensees…) and the Complainant has never given any authorization

to the Respondent to register the Domain Name. On the contrary, the

only link existing between the Respondent and the denomination and

trademarks COGEMA is the systematic denigrations, accusations, and

actions that the Respondent performed against the company bearing

this name and the trademarks of the latter.

(3) The Domain

Name must be considered as having been registered and used

in bad faith :

It is internationally

known that the Complainant and the Respondent have permanently been

in conflict, GREENPEACE INTERNATIONAL multiplying political, legal

or even physical actions and harassments against the company COMPAGNIE

GENERALE DES MATIERES NUCLEAIRES (COGEMA) for the purpose of blocking

the activities of the latter.

The press articles

annexed to the Complaint show very clearly that GREENPEACE INTERNATIONAL

is systematically opposing the activities of COMPAGNIE GENERALE DES

MATIERES NUCLEAIRES (COGEMA) and trying to ruin the reputation of

COGEMA. These statements make it abundantly clear that the

Domain Name was adopted with full knowledge of the Complainant’s well-known

COGEMA trade name and trademarks, and in bad faith.

Such articles

as " French police forcibly remove GREENPEACE protestors after

20-hour against COGEMA’s nuclear waste dumping into the ocean

" or " GREENPEACE accuses COGEMA of robbery ",

" GREENPEACE reaffirms danger of COGEMA’s particle discharges

and launches new complaint ", " GREENPEACE finds

evidence of illegal radioactive discharges by COGEMA " are

few examples of many of the controversies existing between the Complainant

and the Respondent.

The registration

of the Domain Name by such an aggressive opponent to the Complainant

is, as such, a sufficient element to prove the bad faith of the Respondent.

Indeed, this registration by GREENPEACE INTERNATIONAL of the Domain

Name is evidently intended :

- to prevent

the Complainant from reflecting its trade name, and its 68 trademarks

COGEMA in a corresponding domain name and more generally to obstruct

the general advertisement policy of the Complainant ;

- to disrupt

the business of the Complainant ;

- to reserve

the possibility of damaging the reputation of the Complainant by

broadcasting denigrating information to the public and customers

who intended and believed to access to the web site owned by COGEMA

;

Of course, the Respondent

did not use, or make demonstrable preparations to use, the Domain Name

or a name corresponding to the Domain Name in connection with a bona fide

offering of goods or services, presumably for avoiding a trademark infringement

action.

On the contrary,

the Respondent has always quoted the denomination and trademarks COGEMA

for the purpose of criticizing the Complainant, its business and activities.

Actually, the Domain

Name registrant has been commonly known by the denomination COGEMA, but

only for its actions against it.

Therefore, the Domain

Name registrant is obviously making an illegitimate non-commercial and

unfair use of the Domain Name, with a real intent to tarnish the trade

name and the 68 trademarks at issue.

In the light of the

above considerations, it is obvious that the Domain Name has been registered

in bad faith.

Concerning the concept

of "use in bad faith" of a domain name, we refer to the following

decisions of the center :

Case

No. D2000-0003 re <telstra.org>, per Andrew F. Christie ;

Case

No. D2000-0055 re <guerlain.net>, per Anna Carabelli ;

Case

No. D2000-0098 re <babydior.com>, babydior.net>, per François

Dessemontet.

Case

No. D2000-1407 re <ctv.com>, per Howard P. Knopf ;

Case

No. D2000-1589 re <tf1.net>, per Isabelle Leroux ;

[The Complaint contains

extensive quotes from some of those cases. In the view of the Panel, the

point the Complainant seeks to make is sufficiently clear from the following

extract from decision D2000 –0055]

"In other words,

"the requirement of paragraph 4a(iii) that the domain name has been

registered and is being used in bad faith will be satisfied only if the

Complainant proves that the registration was undertaken in bad faith and

that the circumstances of the case are such as that Respondent is continuing

to act in bad faith" (Case No. D2000-0003).

However, this does

not necessarily imply that the respondent is undertaking a positive action

in bad faith in relation to the domain name. The concept of a domain name

"being used in bad faith" is not limited to positive action; inaction

is within the concept, as supported by the actual provision of paragraph

4(b) of the Policy. As a matter of fact, only one of the circumstances

identified in paragraph 4(b) as "evidence of the registration and use

of a domain name in bad faith" by necessity involves a positive action

post registration undertaken in relation to the domain name (paragraph

4(b)(iv)) while the other three circumstances contemplate either a positive

action or inaction in relation to the domain name (paragraphs 4(b)(i),

(ii), (iii)). Of course, these three circumstances require additional

facts (an intention to sell, rent or transfer the registration - paragraph

4(b)(i); a pattern of conduct preventing a trade mark owner’s use of the

registration - paragraph 4(b)(ii); the primary purpose of disrupting the

business of a competitor - paragraph 4(b)(iii))."

We believe that in

this case the following particular circumstances have to be taken into

consideration and will lead the Panel to consider that the Domain Name

is used in bad faith :

- the Complainant’s

trade name and trademarks are widely well known and have a strong

reputation ;

- the Respondent

has provided no evidence of nor alleged any actual or contemplated

good faith use of the Domain Name ;

- in addition

to the Domain Name at issue, Respondent owns at least one other domain

name which is easily recognizable as a domain name consisting of the

corporate name and trade name of another company working in the nuclear

field and against GREENPEACE INTERNATIONAL acts very often in the

same way it does with the COGEMA company. Indeed, GREENPEACE INTERNATIONAL

registered the domain name <britishnuclearfuels.com>, reproducing

the notorious corporate name and trade name of the company of the

same name (abbreviated as BNFL).

- Moreover,

as can be seen from the correspondence exchanged between the Complainant

and the Respondent, in particular the response sent by GREENPEACE

INTERNATIONAL to the lawyer of the Complainant, the Respondent expressly

declared that the reason for the registration of the Domain Name consists

in GREENPEACE INTERNATIONAL’s reproaches to the COGEMA company : "For

those reasons, Greenpeace has reserved the domain name "cogema.org"

in order to engage in legitimate and peaceful protest on the Internet.

Considering the growing success Greenpeace has had in engaging dialog

on our own website regarding the campaign to stop nuclear reprocessing,

we may willing to discuss terms under which we would transfer the

"cogema.org" domain name site to your client."

[emphasis added]

GREENPEACE INTERNATIONAL

has registered willingly the Domain Name in view of requiring from

the Complainant a consideration for transfer.

In other terms,

the Domain Name has been registered by the Respondent in order to

impose something to the Complainant.

Besides, the potential

threat to create a web site www.cogema.org dedicated to criticize COGEMA or

an hyperlink from www.cogema.org to the web site of GREENPEACE INTERNATIONAL

for the purpose of confusing customers of the Complainant and tarnishing the

reputation of it is implicitly comprised in this letter.

Conclusion

For

all the foregoing reasons, we request the Panel to decide :

- To find

that the Domain Name is identical or confusingly similar to the

corporate name, trade name and the trademarks in which the Complainant

has rights,

- To find

that the Respondent has no right or legitimate interest in respect

of the Domain Name,

- To find

that the Domain Name has been registered and is being used in bad

faith.

Accordingly,

pursuant to Paragraph 4 of the Policy, we request the Panel to order

that the registration of the Domain Name be transferred to the Complainant.

B. The Respondent’s

contentions are substantially as follows, being in the main verbatim extracts

from the Response.

The

Respondent repeats its preliminary objections to the Complaint, in particular,

- the unorthodox

system of paragraph numbering resulting, in some instances, in the

failure to accord numbers to several paragraphs (making it difficult

properly to plead to the Complaint)

- the gratuitously

inflammatory (and therefore irrelevant and/or otherwise prejudicial)

statements contained in the Complaint

- averments

concerning the alleged fame and/or notoriety of Complainant’s alleged

trade name and/or trade mark, such averments being irrelevant and/or

otherwise prejudicial (and therefore lacking any probative value).

The Respondent is

unable to admit or deny the alleged fame and/or notoriety of the alleged

trade name and/or trade mark COGEMA. Further or alternatively, if, which

is neither admitted nor denied, the alleged trade name and/or trade mark

COGEMA is either well-known or notorious, the same is irrelevant and/or

otherwise prejudicial. If, which is neither admitted nor denied, the trade

name and/or trade mark COGEMA is the "house mark" of Complainant,

whether as alleged or at all, the same is irrelevant.

The second unnumbered

paragraph of paragraph [12.] at page 8 of the Complaint [concerning the

Complainant’s advertising] is not understood and Respondent hereby requests

further and better particulars of the same.

The Respondent is

unable to admit or deny the alleged fame of the trade mark COGEMA. The

Respondent is unable to admit or deny the registration status of the trade

mark COGEMA and denies that the Domain Name is identical to the alleged

trade name and/or trade mark COGEMA. It is averred that the Domain Name

is similar (though not identical) to the said trade name and/or trade

mark.

It is specifically

denied that Respondent has no legitimate interest in the Domain Name (for

the reasons set forth below). The Respondent objects to the unnumbered

paragraph in the Complaint reading "On the contrary, the only

link existing between the Respondent and the denomination and trademarks

COGEMA is the systematic denigrations, accusations, and actions that the

Respondent performed against the company bearing this name and the trademarks

of the latter" as being unnecessarily inflammatory, irrelevant and/or

otherwise prejudicial.

Paragraph [12.] (3)

at page 9 of the Complaint [the section of the Complaint quoted at A above

and relating some of the history of the hostility between the parties]

is embarrassing. Further, the same is inflammatory, irrelevant and/or

otherwise prejudicial. Without prejudice to the generality of the foregoing,

it is admitted that Respondent is opposed to nuclear power processing

and testing.

As to the final (unnumbered)

paragraph of paragraph [12.] (3) of the Complaint [the section quoted

at A above wherein the Complainant asserts what were the Respondent’s

intentions when registering the Domain Name] it is specifically denied

that the facts and matters pleaded are sufficient to prove the "bad

faith" of Respondent. Without prejudice to the generality of the

foregoing denial, and by way of explanation, Respondent is the international

governing body of the worldwide Greenpeace environmental movement. As

a campaigning organisation, Respondent’s primary aim is to raise public

awareness of ecological degradation in order to bring about lasting environmental

protection. To achieve this aim Respondent relies on the ability to engage

in innovative public campaigning through, for example, the active dissemination

of information via the Internet. Internet based campaigns are, it is submitted,

protected expression under the European Convention on Human Rights and

Fundamental Freedoms, Article 10. Respondent reserved the Domain Name

site in order to engage the public on the issue of nuclear processing.

Complainant’s reprocessing plant at La Hague is responsible for unacceptable

levels of radioactive discharge directly into the North Sea. Further,

Complainant, in accepting reprocessing contracts from overseas countries,

is responsible for the shipment of nuclear waste and plutonium fuel globally.

Respondent believes that this puts the global environment at unnecessary

risk of a nuclear accident at sea. Further, Complainant, through its website,

COGEMA.fr, fails to inform visitors and potential visitors to its website

of its reprocessing activities and the resulting impact on the environment.

This, it is averred, creates an information asymmetry, which Respondent

seeks to redress.

The Domain Name was

not registered for any purpose specified or enumerated at paragraph 4.(b.)(i)

of Uniform Domain Name Dispute Resolution Policy and Complainant has adduced

no evidence in support thereof.

The Domain Name was

not registered for any purpose specified or enumerated at paragraph 4.(b.)

(ii) of the Policy and, without prejudice to the generality of the foregoing,

Complainant has failed to adduce any evidence that Respondent has "engaged

in a pattern of such conduct... ."

The Domain Name was

not registered for any purpose specified or enumerated at paragraph 4.(b.)

(iii) of the Policy. The Domain Name was registered in order to further

debate on matters of grave public concern, namely, the environmental effects

of nuclear power processing and testing.

It is specifically

denied that the Domain Name was registered for commercial gain, whether

as alleged or at all, in contravention of or otherwise falling within

the prohibition of paragraph 4. (b.) (iv) of the Policy. Further, Complainant

has failed to adduce any evidence in support of its allegation that the

said domain name was registered for commercial gain. Respondent joins,

in this regard, with Complainant when it states in the Complaint that

the said domain name was registered "for the purpose of criticizing

the Complainant, its business and activities."

The Respondent is

unable and does not plead to the case law cited by the Complainant. The

case law of the Provider is not uniform and the case selected by Complainant

is but one of a number of decisions rendered by the Provider. Further,

and without prejudice to the foregoing, the case selected by Complainant

is dissimilar from the present Complaint in a number of fundamental respects,

including (i) Respondent in that case engaged in a pattern of such conduct

(having registered 24 domain names) and (ii) Complainant has adduced no

evidence to show that Respondent registers domain names in order to sell

them for profit.

As to the paragraph

of the Complaint dealing with the Respondent’s registration of the domain

name britishnuclearfuels.com, if, which is denied, the same be relevant

(i) Respondent has not as at the date hereof made any use whatever of

the domain name BRITISHNUCLEARFUELS.com (ii) the company, British Nuclear

Fuels Limited, has not instituted or threatened to institute any legal

or administrative proceedings in respect of the registration of the said

domain name, BRITISHNUCLEARFUELS.com (iii) Respondent registered the said

domain name in order to further debate on matters of grave public concern,

namely, the environmental effects of nuclear power processing and testing.

The Domain Name has

not as at the date of the Complaint herein been put to use by Respondent.

The Domain Name has

not been offered for sale.

The Respondent does

not and does not intend to supply any goods or services under the Domain

Name. Respondent is a not-for-profit registered charity.

The Domain Name was

registered for the purpose of furthering debate on matters of grave public

concern, namely, the environmental effects of nuclear power processing

and testing. In the premises, the use to which Respondent intended to

put the Domain Name was a non-commercial, and therefore fair or referential,

use. It is not every use of a trade name or trade mark, whether authorized

or unauthorized, which infringes upon that trade mark. Examples include

parodic and other referential uses. This is particularly so where the

trade mark at issue is used for non-commercial purposes.

Further or alternatively,

the use to which Respondent intended to put the Domain Name is protected

speech or expression under The European Convention on Human Rights and

Fundamental Freedoms, Article 10.

Further or alternatively,

the Complaint herein is a barely veiled attempt (in the guise of intellectual

property rights) to chill free speech on matters of grave public concern.

The Provider is respectfully

requested to dismiss the Complaint herein.

C. The Complainant’s

contentions (supplemental filing) are as follows:

Concerning the paragraphs

of the Response, which respectively point out that "Respondent reserved

the said domain name site in order to engage the public on the issue of nuclear

reprocessing" and "Respondent registered the said domain name

in order to further debate on matters of grave public concern, namely, the environmental

effects of nuclear power processing and testing", this sentence constitutes

an admission that GREENPEACE INTERNATIONAL may create a web site or an hyper-link

towards its web-site www.greenpeace.org for the purpose of misleading Internet

users intending to access COGEMA site and directing them to a site criticizing

the Complainant and consequently disturbing the activity of COGEMA.

Concerning the paragraph

of the Response in which the Complainant asserts that the use to which intended

to put the Domain Name is protected under the European Convention on Human Rights,

the Respondent holds its own domain name and web site www.greenpeace.org where

it can exert its right of free speech and can freely "debate on matters

of grave public concern".

The exercise of protected

speech or expression under article 10 of The European Convention on Human

Rights and Fundamental Freedoms is clearly possible without confiscating

the property of someone else.

6. Discussion and

Findings

According to paragraph

4(a) of the Policy, the Complainant must prove that:

(i) The Domain

Name is 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 interest in respect of the Domain Name; and

(iii) The Domain Name has

been registered and is being used in bad faith.

Procedural Issues

As to the Respondent’s

Preliminary Motions:

(a) the first

has been acceded to in that the Panel is not a French national;

(b) the second

is denied on the basis that the passages in question are irrelevant.

For the record, the Panel derived no value from the first passage

and very little from the second, which merely seemed to confirm the

impression derived from the press comment and press releases exhibited

to the Complaint that there is a regular and continuing state of conflict

between the parties;

(c) the third,

as to the paragraph numbering of the Complaint, which raises a point

with which the Panel has much sympathy, is now to all intents and

purposes a ‘dead’ issue, the Respondent having found a satisfactory

way of overcoming the problem;

(d) the fourth,

the request for an extension of time, was dealt with by WIPO and the

Panel does not believe that the Respondent has suffered in any way

from WIPO’s refusal of the extension.

As to certain comments

in the Response indicating that the Respondent has not understood a pleading

in the Complaint or requires further particulars of a pleading in order

to respond to it, the matters to which they pertain are immaterial to the

issues which the Panel has to address and the Panel sees no need for any

further filings.

As to the supplemental

filing of the Complainant the Panel has read it and sees no point in refusing

to allow it into the record. It is argumentative and adds nothing to the

substance of the Complaint.

Identical or confusing

similarity

The Domain Name comprises

two elements, namely ‘cogema’, which is the Complainant’s name and trademark,

and ‘.org’, which is generic. Clearly, whether or not one disregards the

‘.org’ element of the Domain Name, it is either identical to or confusingly

similar to the Complainant’s name.

The Panel observes

that the Complainant failed to exhibit any trade mark registration certificate

to provide conclusive proof of its trade mark rights. It relied upon exhibiting

its internal records. Perhaps it was for this reason that the Respondent

failed to admit the existence of the registered rights. The course that

the Complainant took is a risky one. It is not a course that the Panel recommends

Complainants to take, but, here, the Panel has no reason to doubt that the

registrations claimed for the mark do in fact exist and, in any event, the

material exhibited to show how the Complainant trades demonstrates to the

satisfaction of the Panel that the Complainant has unregistered rights in

the name.

The Panel finds that

the Domain Name is identical or confusingly similar to a trade mark in which

the Complainant has rights.

Rights or legitimate

interest of the Respondent

Proving that the Respondent

has no rights or legitimate interests in respect of the Domain Name requires

the Complainant to prove a negative. For the purpose of this sub paragraph,

however, it is sufficient for the Complainant to show a prima facie case

and the burden of proof is then shifted on to the shoulders of the Respondent.

In those circumstances, the common approach is for respondents to seek to

bring themselves within one of the examples of paragraph 4(c) or put forward

some other reason why they can fairly be said to have a relevant right or

legitimate interest in respect of the domain name in question.

The Complainant’s name

and principal trademark, COGEMA, is a well-known name in its field of operation

exclusively associated with the Complainant and its services/products. Significantly,

it is well-known to the Respondent as being the Complainant’s name and trade

mark. The Domain Name is essentially the Complainant’s name and principal

trademark.

There is no reason

obvious to the Panel why the Respondent might have a right or legitimate

interest in respect of the Domain Name. The Panel has no evidence before

it to suggest any reason why the Respondent might have any rights or legitimate

interests in respect of the Domain Name. The relevant passage in the Response

reads "it is specifically denied that Respondent has no legitimate

interest in the said domain name (for the reasons set forth below)",

but nothing that follows has any bearing on this issue.

The Response proceeds

to show why the Respondent has a right to free speech and a legitimate interest

in criticizing the activities of organizations like the Complainant, but

that is a very different thing from having a right or legitimate interest

in respect of the Domain Name.

Accordingly, the Panel

finds that the Respondent has no rights or legitimate interests in respect

of the Domain Name.

Bad Faith

Paragraph 4(b) of the

Policy sets out four non-exclusive criteria, which shall be evidence of

the registration and use of a domain name in bad faith.

Paragraph 4(b)(i) concerns

acquisition of the Domain Name in order to sell it, but the only evidence

that the Respondent may be prepared to release it to the Complainant (the

Respondent’s letter of February 12, 2001 quoted above) relates to the Respondent’s

recent realization that the Domain Name may be surplus to requirements.

The Panel is satisfied that the Domain Name was not registered with a view

to it being sold to the Complainant. Paragraph 4(b)(ii) concerns acquisition

for the purpose of blocking the Complainant, provided that the Respondent

has engaged in a pattern of such conduct. Notwithstanding the evidence of

a pattern of conduct, namely the Respondent’s registration of <britishnuclearfuels.com>,

the Panel accepts the Respondent’s denial that this was the reason for registering

it. Paragraph 4(b)(iii) involves disruption of the business of a competitor,

but the Respondent is not a competitor of the Complainant. Paragraph 4(b)(iv)

involves use of the Domain Name for commercial gain for the purpose of attracting

visitors to the Respondent’s online location in the mistaken belief that

they are visiting a location of or associated with the Complainant. Arguably

that cannot apply to the Respondent because it is a non-profit making charitable

organization.

However, paragraph

4(b) does not comprise an exhaustive list of the circumstances, which shall

constitute evidence of registration and use in bad faith.

In assessing ‘bad faith’

for the purpose of the Policy, the motivation of the Respondent is all-important.

In this case, the motivation is clear. As the Complainant claims in one

part of the Complaint and as the Respondent expressly admits in the Response,

the Domain Name "was registered for the purpose of criticizing the

Complainant, its business and activities." The Panel accepts that that

was the Respondents intention. In so saying, it is also clearly the case

that, as the Respondent stated in its letter of February 12, 2001, an important

aim of the campaign in which the Domain Name was to be used was to stop

nuclear processing. Necessarily, if successful, that would cause serious

disruption and damage to the Complainant’s business.

In short, what the

Respondent has done is to select for the Domain Name a name which is not

its own, which it knew at the time of registration to be the name and trade

mark of the Complainant and which it proposed at the time of registration

to use in a campaign against the Complainant to cause the Complainant disruption

and damage. The Domain Name would be particularly useful for that purpose

because it would catch by surprise visitors intending to reach the Complainant’s

website. That this last point was intended is clear from the passage in

the Response reading:

"Further, Complainant,

through its website, <cogema.fr>, fails to inform visitors and potential

visitors to its website of its reprocessing activities and the resulting

impact on the environment. This, it is averred, creates an information

asymmetry, which Respondent seeks to redress."

In other words, visitors

to the Complainant’s website are insufficiently informed, so the Respondent

proposes to redress the balance by sufficiently informing a proportion of

those seeking to visit the Complainant’s site. Nowhere in the Response does

the Respondent deny the Complainant’s allegation that registration of the

Domain Name was intended:

"to reserve

the possibility of damaging the reputation of the Complainant by broadcasting

denigrating information to the public and customers who intended and believed

to access to the web site owned by COGEMA;"

In the Response the

Respondent merely says that as to that allegation "it is specifically

denied that the facts and matters pleaded are sufficient to prove bad faith

of Respondent".

Had the Respondent

been a competitor, there can be no doubt that its behaviour would have come

within the terms of paragraph 4(b)(iii) of the Policy. Had the Respondent

been acting "for commercial gain", there can be no doubt that

its behaviour would have come within the terms of paragraph 4(b)(iv) of

the Policy.

In this Case, the Respondent

is neither a "competitor" of the Complainant nor is it acting

for "commercial gain" in the ordinary sense of those words. However,

while the Panel recognizes the Respondent’s right to campaign and to conduct

its campaigns by way of the internet, the Domain Name is not necessary for

that purpose. Moreover, registration of a domain name comprising the name

and trade mark of another and specifically with a view to causing damage

and disruption to that other cannot be right, still less where the use of

the Domain Name will trick internet users intending to visit the trade mark

owner’s site into visiting the registrant’s site. The Panel therefore finds

that the Domain Name was registered in bad faith.

The fact that the Domain

Name has not been used is not conclusive in favour of the Respondent. The

Panel respectfully endorses the view of the Panelist in case D2000-0055

as expressed in the extract from her decision quoted at page 5 above.

The Respondent has

made its intention clear and the continuing threat hanging over the Complainant’s

head constitutes bad faith use of the Domain Name.

Accordingly, the Panel

finds that the Domain Name was registered and is being used in bad faith.

7. Decision

In the result, the

Panel having found that the Domain Name is confusingly similar to a trade

mark in which the Complainant has rights and that the Respondent has no

rights or legitimate interests in respect of the Domain Name and that the

Domain Name has been registered in bad faith and is being used in bad faith,

the Complaint succeeds.

The Panel directs that

the Domain Name, <cogema.org>, be transferred to the Complainant.

Tony Willoughby

Sole Panelist

Dated: May

14, 2001