devarrieuxvillaret SA v. Beaufort Holding Ltd

WIPO Arbitration

and Mediation Center

ADMINISTRATIVE

PANEL DECISION

Devarrieuxvillaret

SA v. Beaufort Holding Ltd.

Case No.

D2001-0436

1. The Parties

The Complainant is Devarrieuxvillaret

S.A., a French société anonyme, having its principal place

of business in Paris, France.

The Respondent is Beaufort

Holding Ltd., a company having its principal place of business in Hong Kong,

Central HK, SAR, China.

2. The Domain Name and

Registrar

The domain name at issue

is <devarrieuxvillaret.com>. The domain name registrar is CORE Internet

Council of Registrars ("CORE").

3. Procedural History

Complainant filed its Complaint

in French with the World Intellectual Property Organization Arbitration and

Mediation Center (the "Center") which was received by email on March 27, 2001,

and in hard copy on March 29, 2001.

The Complainant submitted

an initial amendment to the Complaint to the Center by email on April 9, 2001.

On April 9, 2001, the Center

transmitted a request for registrar verification to CORE in connection with

this case.

On April 10, 2001, CORE

sent via email to the Center a verification response confirming that the Respondent

is the registrant and that the administrative, technical and zone contact is

Annie Robert at the same email address as the Respondent.

On May 2, 2001, the Center

requested by email that the Complainant provide an English version of the Complaint.

Complainant filed the Complaint in English with the Center which was received

by email on May 9, 2001, and in hard copy on May 16, 2001.

On May 17, 2001, the Center

verified whether the Complaint satisfies the formal requirements of the ICANN

Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for

Uniform Domain Name Dispute Resolution Policy (the "Rules") and the Supplemental

Rules for Uniform Domain Name Dispute Resolution (the "Supplemental Rules")

and notified Complainant that its Complaint was deficient.

On May 17, 2001, the Center

received by email Complainant’s second amendment to the Complaint, resolving

the deficiency. The Center completed the verification process on May 18, 2001.

On May 18, 2001, the Center

formally commenced this proceeding and notified Respondent that its response

would be due by June 6, 2001. The notification was sent to the Respondent by

courier, fax and by email. The email appears to have been transferred without

receipt of any "undeliverable" notice.

On May 18, 2001, the Center

entered the address <devarrieuxvillaret.com/eng> and appears to have been

forwarded to the web page for <Resadomain.com>.

The Respondent did not

file a response by the due date. The Center sent a notification of Respondent

default to the Respondent by email and courier on June 11, 2001.

Complainant elected a single-member

Panel. On June 19, 2001, after clearing for potential conflicts, the Center

appointed Thomas H. Webster as the Panelist, and set July 3, 2001, as the deadline

for issuance of a decision.

4. Procedural and Factual

Background

The following facts are

taken from the Complaint and are generally accepted as true in the circumstances

of this case.

"The company devarrieuxvillaret

is an agency of consultings (sic) in communication, supply to present

on its site the whole of its creations, of its customers. The site is regarded

as a calling card insofar as we are in the field of the communication in any

kind: TV, Print, Internet, Edition.

Moreover, we are an agency

with international vocation insofar as we have customers (US / German /) who

solicit us so that we are in load (sic) of their international coordination.

From where importance for us to have the domain name " <devarrieuxvillaret.com>"".

5. Parties Contentions

Complainant makes the following

allegations. The legal issues are discussed in the next section of this decision.

"The company name

of the company is explained in the following way: The two leaders (cofounders)

name themselves: Benoit Devarrieux and Jean-Pierre Villaret. For the company,

this denomination thus makes sense. Consequently, we have the right to think

that the originality of the name " devarrieuxvillaret " does not make it possible

to a legal entity or physical to deposit it in domain name, more especially

as this name does not have any particular significance.

Moreover, the bad faith

exists, according to us, because it appears that the site < devarrieuxvillaret.com>

is a simple gate. For a few days, it has not acted more than one gate proposing

various services but of a site which makes it possible to know if such or such

domain name were already allotted <DomainsCommunication.com>.

In addition, by making

certain search, we discovered that on other sites like <nouveleldorado.com>

or <ailleursexactement.com>, the gate and the graphics of the gate is

identical to <devarrieuxvillaret.com>. It proves that New Eldorado and

Ailleurs Exactly are also agencies of consultings (sic) in communication.

Taking into account: -

originality of the denomination "devarrieuxvillaret", - little of

interest of the site <devarrieuxvillaret.com> - and especially owing to

the fact that this site is identical to at least 2 others all this tends to

prove that the recording of the domain name <devarrieuxvillaret.com> was

made for a resale, in all the cases to carry damage. Like known as previously,

we have the right to think that the defendant is usual of this practice insofar

as at least two other sites are identical to that of the defendant <devarrieuxvillaret.com>.

There is no explanation on behalf of the defendant concerning the choice of

their domain name."

6. Discussion and Findings

The burden for the Complainant

under paragraph 4(a) of the Policy is to prove:

(i) That the domain

name registered by the Respondent is identical or confusingly similar to a trademark

or service mark in which the Complainant has rights; and

(ii) That the Respondent

has no rights or legitimate interests in respect of the domain name; and

(iii) That the domain

name has been registered and is being used in bad faith.

A. The Existence and

Similarity of the Domain Name and Trademark

It is a basic requirement

under the Policy and the Rules that the Complainant demonstrates that it has

rights to a trademark or service mark.

The Complainant provides

no evidence at all of a trademark or service mark in its Complaint. The Complainant’s

only argument appears to be that "the originality of the name " devarrieuxvillaret

" does not make it possible to a legal entity or physical to deposit it in domain

name".

Given the lack of any evidence

of a trademark in which the Complainant has rights, the Panelist concludes that

the Complainant has failed to prove that it has a trademark.

Therefore, the Complainant

has failed to meet the first requirement of paragraph 4(a) of the Policy.

B. Respondent's Rights

and Legitimate Interests and C. Bad Faith Registration and Use

Since the Complainant has

failed in respect of the first requirement, the Panelist is not required to

consider whether it has met the other requirements of paragraph 4(a) of

the Policy and the Panelist will not do so.

7. Decision

For the foregoing reasons,

the Panelist holds that this dispute is not within paragraph 4(a) of the

Policy and that the domain name <devarrieuxvillaret.com> shall remain

registered to the Respondent.

Thomas H.

Webster

Sole Panelist

Dated: July

3, 2001