Système U Centrale Nationale v. C 2 I B

WIPO

Arbitration and Mediation Center

ADMINISTRATIVE

PANEL DECISION

Système

U Centrale Nationale v. C2IB

Case No:

D2001-0417

1. The Parties

The Complainant in

this administrative proceedings is Système U Centrale Nationale,

a company organized under French law, located at 9-11, rue Georges

Enesco, 94000 Creteil, France and represented by Christian Frick with offices

at rue du Faubourg Saint Honoré, 56A, 75008 Paris, France, hereinafter

the "Complainant".

The Respondent is C2IB,

with address at rue du Forez, 6 bis, 75003 Paris, France, hereinafter the

"Respondent".

2. The Domain Name

and Registrar

The domain name at issue

is <magasinu.com>, hereinafter the "Domain Name". The registrar is Network

Solutions Inc and the Domain Name was registered on September

15, 1999.

3. Procedural History

The WIPO Arbitration

and Mediation Center, hereinafter "the Center" received the Complainant's

complaint and the exhibits on March 23, 2001 by hardcopy and on March 29,

2000 by email.

On March 28, 2001 the

Center has transmitted the Acknowledgement of Receipt of Complaint both

to the Complainant and to the Respondent by email.

On March 28, 2001 the

Center transmitted via email to Network Solutions, Inc. a request for Registrar

Verification relating to this case. On March 30, 2001 Network Solutions

Inc. transmitted via email to the Center, Network Solutions’ Verification

Response, confirming that the Domain Name is registered with Network Solutions,

that the Respondent is the current registrant of the Domain Name and that

the administrative and billing contact is Rachel Ebi, while the Technical

Contact is Mydomain.com Support. It confirmed also that the Network Solution

4.0 Agreement is in effect and that the Domain Name registration status

is "Active".

On March 29, 2001 the

Center received by email and by fax the Complainant's rectification of Complaint

regarding the name of registrar.

On April 3, 2001 the

Center verified that the complaint satisfies with the formal requirements

of the ICANN Uniform Domain Name Dispute Resolution Policy (the Policy),

the Rules for Uniform Domain Name Dispute Resolution (the Rules), and the

Supplemental Rules for Uniform Domain Name Dispute Resolution (the Supplemental

Rules).

The Center transmitted

on April 3, 2001 to the Respondent the Notification of Complaint and Commencement

of the Administrative Proceeding via post/courier and email in accordance

with the following contact details, C2IB, 6 bis, rue du Forez, 75003 Paris,

France.

The Administrative and

Billing Contact is RACHEL EBI, 6 bis, Rue du Forez, 75003 Paris, France. Tel:

00 33 1 48879273, E-mail: Postmaster@magasinu.com,ciibourse@minitel.net

The Technical contact is

mydomain.Com Support, Global Internet Names Inc., 588-12 Church St., Hamilton,

BM, E-Mail: Support@MYDOMAIN.COM.

This notification has

been copied to the Complainant via email.

The Center advised

that the Response was due by April 22, 2001.

On April 23, 2001 having

received no Response from the Respondent, the Center issued to the email

address of both parties a Notification of Respondent Default. No reply by

the Respondent to the Notification of Respondent Default was received.

On April 26, 2001 in

view of the Complainant’s designation of a single panelist, the Center invited

M. Geert Glas to serve as a panelist and transmitted to him the Request

for Declaration of Impartiality and Independence and a Statement of Acceptance.

Having received, on

April 27, 2001 M. Geert Glas' Declaration of Impartiality and Independence

and his Statement of Acceptance, the Center transmitted on April 30, 2001

to the parties a Notification of Appointment of Administrative Panel and

Projected Decision Date by e-mail, in which M. Geert Glas was formally appointed

as the Sole Panelist. The Projected Decision Date is May 13, 2001. The Sole

Panelist finds that the Administrative Panel was properly constituted and

appointed in accordance with the Rules and Supplemental Rules.

Having reviewed the

communication records in the case file, the Administrative Panel finds that

the Center has discharged its responsibility under Paragraph 2(a) of the

Rules "to employ reasonably available means calculated to achieve actual

notice to Respondent." Therefore the Administrative Panel shall issue its

Decision based on the Complaint, the Policy, the Rules, the Supplemental

Rules and the verifiable facts but without the benefit of any Response from

Respondent.

4. Factual Background

On August 3, 1988 the

Complainant registered the trademark "LES MAGASINS U" in France with the

"Institut National de la Propriété Industrielle". This trademark

was renewed on August 3, 1998 for a period of ten years.

This trademark has

been registered for the goods and services of classes 1 to 42.

It can be said that

the Complainant's trademark has become through massive advertising, and

through the important expansion of its distribution activity a well-known

mark in France.

It appears from Network

Solutions’ Verification Response that the Respondent is the registrant of

the Domain Name. The Respondent registered the Domain Name on September

15, 1999.

The website linked

to the Domain Name is under construction.

5. Parties Contentions

a. Complainant

The Complainant contends

that the Domain Name is confusingly similar to its trademark.

The Complainant contends

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

the Domain Name since it is neither known by the Domain Name in question

even without having acquired trademark rights, nor has made any legitimate

non commercial or fair use of the Domain Name.

The Complainant contends

that the Respondent has registered the Domain Name in bad faith since the

Respondent has registered the Domain Name for the purpose of preventing

the Complainant from using its trademark in the form of a domain name and

thus for the purpose of perturbing trade operations over the Internet. It

contends also that the registration of the Domain Name can only be deemed

to have been made in bad faith since the Respondent, which is French, could

not be unaware of the intensive use over a long period of the trademark

by the Complainant.

b. Respondent

Respondent has not

contested the allegations of the Complaint and is in default.

6. Discussion and

Findings

Paragraph 15(a) of

the Rules instructs the Administrative Panel as to the principles the Administrative

Panel is to use in determining the dispute: "A Panel shall decide a complaint

on the basis of the statements and documents submitted in accordance with

the Policy, these Rules and any rules and principles of law that it deems

applicable."

Applied to this case,

Paragraph 4(a) of the Policy directs that the Complainant must prove each

of the following:

(1) that

the Domain Name registered by the Respondent is identical or confusingly

similar to the trademark in which the Complainant has rights; and,

(2) that

the Respondent has no rights or legitimate interests in respect of

the Domain Name; and,

(3) that

the Domain Name has been registered and used in bad faith.

a. Identity or

confusing similarity

The trademark of Complainant

consists of the words "Les Magasins" followed by the letter "U".

It is obvious that

although the Respondent's Domain Name is composed out of the single word

"magasinu", this word is incontestably similar to the words of which the

trademark "Les Magasins U" is comprised of. Indeed, the only differences

are the singular/plural declination of the word "magasin" and the adding

of the neutral word "les". The fact that the words are not interspaced in

the Domain Name, as is the case in the trademark, does not seem to reduce

this similarity.

The Administrative

Panel therefore finds that the Domain Name is confusingly similar to the

Complainant's trademark and finds that the requirement of paragraph 4(a)(i)

of the Policy is satisfied.

b. Rights or Legitimate

Interests

The Complainant has

not licensed or otherwise permitted the Respondent to use its trademark

or to apply for any domain name incorporating its trademark.

Moreover, by not filing

a Response, the Respondent has failed to invoke any circumstance which could

indicate the existence of any right or legitimate interest he would have

in the Domain Name. Therefore the Panel finds that the requirement of paragraph

4(a)(ii) of the Policy is satisfied.

c. Registration

and Use in Bad Faith

When registering the

Domain Name, Respondent knowingly and purposefully chose a name which is

confusingly similar to Complainant's trademark. Indeed, the Panel finds

that the Complainant has brought sufficient evidence that "LES MAGASINS

U" trademark is well-known and commonly used in France.

Considering that the

Respondent is located in France, the choice of the Domain Name by the Respondent

is very unlikely to have resulted from a mere coincidence.

The Respondent could

not have been unaware of the Complainant's trademark, and by knowingly choosing

a domain name consisting of the Complainant's trademark, the Respondent

intentionally created a situation which is at odds with the legal rights

and obligations of the parties.

The website related

to the Domain Name was under construction in April 2001 when the Complainant

introduced this proceeding and still is while the Administrative Panel is

considering this case.

The Respondent was

in default to respond in this proceedings, thereby failing to invoke any

element or circumstance which could indicate the good faith nature of his

registration and use of Domain Name. As a consequence, the Respondent has

failed to demonstrate any bona fide use of the Domain Name.

Considering the lack

of interest of the Respondent in the Domain Name, in the defense of his

rights and interests as to the Domain Name and the above facts, the Administrative

Panel finds that the Complainant has met its burden under section 4(a)(iii)

of the Policy and that the Respondent has registered and used the Domain

Name in bad faith.

7. Decision

In light of the foregoing,

the Administrative Panel decides that the Domain Name registered by the

Respondent is confusingly similar to the Complainant's trademarks, that

the Respondent has no rights or legitimate interests in respect of the Domain

Name, and that the Respondent’s Domain Name has been registered and is being

used in bad faith.

Accordingly, pursuant

to Paragraph 4(i) of the Policy, the Administrative Panel requires that

the registration of the Domain Name <magasinu.com> be transferred

to the Complainant.

Geert Glas

Sole Panelist

Dated: May

13, 2001

More cases by this complainant

• Système U Centrale Nationale v. Sacha Rebk — D2001-0416 · magasinsu.com · Transfer · 28 May 2001