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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
La Sociйtй Anonyme des Bains de Mer et du Cercle des Etrangers а Monaco v. Netrider
Case No. D2000-1330
1. The Parties
Complainant is the S.A. La Sociйtй Des Bains de Mer et Du Cercle Des Etrangers а Monaco, having its registered office at Place du Casino, Monte Carlo, MC 98000 Monaco, Principautй de Monaco. Complainant is represented by Sociйtй d'avocats August & Debouzy, Attorneys, having their principal place of business at 6 avenue de Messine, 75008 Paris, France (hereinafter referred to as "Complainant").
Respondent is Netrider with a declared address at 6 avenue d'Alery, 74000 Annecy, France (hereinafter referred to as "Respondent").
2. The Domain Name and Registrar
The domain name at issue is: "monaco-casino.com" (hereinafter referred to as "the Domain Name").
The registrar of the Domain Name at issue is Network Solutions Inc. (NSI), 505 Huntmar Park Drive, Herndon, VA 20170, USA (hereinafter referred to as "Registrar").
3. Procedural History
On November 28, 2000 after having receiving Benoit Van Asbroeck’s completed and signed statement of Acceptance and Declaration of Impartiality and Independence, the WIPO Arbitration and Mediation Center (the "Center") transmitted to the parties a Notification of Appointment of Administrative Panel.
The procedural history prior to the appointment of the Administrative Panel can be summarised as follows:
On October 4, 2000 the Center received a copy of the Complaint from Complainant via email and on October 5, 2000 the Center received the hardcopy of the Complaint. On October 9, the Center sent an Acknowledgment of Receipt of Complaint to Complainant. The Complainant paid the required fee.
The Center verified that 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 Policy (the "Supplemental Rules").
On October 25, 2000 the Center sent a Notification of Complaint and Commencement of Administrative Proceeding to the Respondent together with copies of the Complaint, with a copy to the Complainant.
Notwithstanding due notification to Respondent of the Complaint including Complainant's file, Respondent did not submit any response. Accordingly on November 15, 2000 the Center advised Respondent that it was in default for failing to file its Response.
The language of the administrative proceeding is English, being the language of the registration agreement.
4. Factual Background
The Complaint is based upon Complainant's claimed rights in the trademark "Casino de Monte Carlo" registered with the Monaco Trademark Office. A copy of the registration certificate of the trademark appears in Exhibit D of Complainant's file.
Complainant has had a monopoly on games and gambling in Monaco since 1863.
On April 24, 1999 Respondent registered the domain name "monaco-casino.com".
The disputed domain name is not used for a website.
5. Parties’ Contentions
According to Paragraph 4(b)(i) of the Uniform Domain Name Dispute Resolution Policy, adopted by ICANN on August 26, 1999 (hereinafter referred to as "the Policy"), Complainant requests a transfer in its favour of the Domain Name since it cumulatively meets the conditions listed under Paragraph 4 (a) of the Policy.
Complainant contends that the Domain Name is identical or at least very similar to the Complainant's registered trademark.
According to Complainant it would be wrong to focus solely on the term "Monte Carlo" since the Casino of Monaco is known equally under the two terms.
Respondent cannot demonstrate or establish any legitimate interest in the Domain Name. Respondent did not register any trademark related to "Casino de Monaco". Respondent has not established an active web page with the Domain Name.
The Domain Name has been registered and used in bad faith taking into account the famous character of Complainant's trademark and its monopoly in the area of gambling in Monaco.
No response was submitted.
6. Discussion and Findings
Pursuant to paragraph 15(a) of the Rules, the Administrative Panel shall issue its decision on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
Paragraph 4(a) of the Policy provides that a Complainant must cumulatively establish each of the following three conditions to successfully challenge a registered domain name:
(1) 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
(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 is being used in bad faith.
On December 1, 2000 the Administrative Panel noticed that the entry to Respondent's domain name, triggered the following message "Internet explorer cannot open the Internet site http://www.monaco-casino.com, a connection with the server could not be established".
The Administrative Panel shall now examine whether the conditions specified under paragraph 4 (a) of the Policy are satisfied here.
(1) Right in a trademark - Identity or Confusing Similarity
According to paragraph 4 (a)(i) to (iii) of the Policy the Complainant in the Administrative Proceeding must prove that the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The domain name "monaco-casino.com" is confusingly similar to Complainant's trademark. For the Administrative Panel, in absence of a Response of Respondent, the distinction between "Monaco" and "Monte Carlo" does not appear to be determining since Monte Carlo is commonly associated with the State of Monaco.
With regard to avoiding confusion, addition of the top level domain name ".com" is irrelevant.
(2) Respondent’s rights or legitimate interests in the Domain Name
According to Paragraph 4(c) of the Policy, evidence of any of the following circumstances shall demonstrate rights or legitimate interests of Respondent in the domain name at issue:
(i) before any notice was given to Respondent of the dispute, Respondent used, or demonstrably made 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; or
(ii) Respondent (as an individual, business, or other organisation) has been commonly known by the domain name, even though it has not acquired any trademark or service mark rights; or
(iii) Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
According to Complainant's allegations, not disputed by Respondent, Complainant has not licensed or otherwise permitted Respondent to use its trademark or to apply for any domain name incorporating all or part of this mark.
By not submitting a response, Respondent has failed to invoke any circumstances which could demonstrate, pursuant to paragraph 4 (c) of the Policy, any rights or legitimate interest in the Domain Name.
To the contrary, it appears that Respondent does not use the Domain Name for a website.
The Administrative Panel finds that Respondent has no rights or legitimate interest in the Domain Name.
(3) Registration and Use in Bad Faith
According to Paragraph 4 (b) of the Policy, evidence of any of the following circumstances shall demonstrate a bad faith registration and use of the Domain Name at issue :
(i) circumstances indicating that Respondent has registered or that Respondent has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) the Respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location
Pursuant to paragraph 4(a)(iii) of the ICANN Policy the Complainant has to prove that the Respondent has registered and is using the Domain Name in bad faith. Paragraph 4(b) of the ICANN Policy provides a number of non-exhaustive circumstances which, if found to be present, are evidence of the registration and use of a Domain Name in bad faith.
Several facts must be taken into consideration:
(a) When registering the Domain Name, Respondent could not have been unaware of the fact that it chose a name which could attract users in a manner that creates the possibility of confusion for the consumer as to whether the site is associated with the "Casino de Monte-Carlo";
(b) Respondent has not established an active web page with the Domain Name;
In consideration of the above facts, the Administrartive Panel finds that, by registering the domain Name, Respondent prevents Complainant from reflecting its mark in a corresponding domain name.
In view of the foregoing and pursuant to Paragraph 4 (b) (ii) of the Policy, the Administrative Panel finds that Respondent registered and used the Domain Name in bad faith.
Consequently, the Administrative Panel considers that the three cumulative conditions provided under paragraph 4(a) of the Policy are met in this case.
In light of the foregoing, the Administrative Panel decides that the domain name "monaco-casino.com" must be transferred to Complainant in accordance with the ICANN Rules.
Benoit Van Asbroeck
Dated: December 12, 2000