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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Laurence Fontaine v. Visiotex SA
Case No. D2001-0071
1. The Parties
The Complainant is Laurence Fontaine who resides in Paris, France. The Complainant’s pseudonym is Laure Sainclair.
The Respondent is Visiotex S.A. with an address at 1250 Hallandale Blvd # 502, Ft. Lauderdale, Florida 33009, USA.
2. The Domain Name and Registrar
The domain name at issue is <lauresainclair.com>. The domain name registrar is Network Solutions, Inc.
3. Procedural History
Complainant filed its Complaint with the World Intellectual Property Organization Arbitration and Mediation Center (the "Center") which was received by email on January 15, 2001, and in hard copy in French on January 29, 2001.
On January 24, 2001, the Center transmitted a request for registrar verification to Network Solutions, Inc. in connection with this case.
On January 25, 2001, Network Solutions, Inc. sent via email to the Center a verification response confirming that the Respondent is the registrant, that the administrative contact is Paule Arfi of Visiotex S.A. with a postal address in Tel Aviv, Israel and that the technical and billing contact is Eitan Golan of Visiotex S.A. with a postal address in Tel Aviv, Israel. On January 30, 2001, Network Solutions, Inc. confirmed to the Center that the language of the registration agreement is English.
On January 31, 2001, the Center received by email an English version of the Complaint from the Complainant.
On February 7, 2001, 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 February 7, 2001, the Center formally commenced this proceeding and notified Respondent that its response would be due by February 26, 2001. The notification was sent to the Respondent by courier, fax and mail. The courier and fax appear to not have been delivered due to an incorrect address and fax number. The email appears to have been transferred without receipt of any "undeliverable" notice.
Respondent did not file a response by the due date. The Center sent a notification of respondent default to the Respondent by email on March 1, 2001.
Complainant elected a single-member Panel. On March 13, 2001, after clearing for potential conflicts, the Center appointed Thomas H. Webster as the panelist, and set March 26, 2001 as the deadline for issuance of a decision.
4. Factual Background
Because there is no response, the following facts are taken from the Complaint and are generally accepted as true in the circumstances of this case.
"The complainant Laurence FONTAINE is well known under the name Laure SAINCLAIR which is her exclusive pseudonym for acting and singing since year 1995. Laurence FONTAINE performed for 18 months under contract with a X film videos producer. This contract came to the end in Februray (sic) 1998.
Laure SAINCLAIR is now exclusively involved in singing and acting for all audiences.
Laurence FONTAINE (known as Laure SAINCLAIR) is now famous in France and worldwide as an artist.
Laurence FONTAINE also registered in 1996 her name "Laure SAINCLAIR" as a trade mark at the French trade mark office: Institut National de la Propriйtй Industrielle - INPI.
Laurence FONTAINE created her own limited company named "Laure SAINCLAIR SARL" for publishing."
The Respondent registered the domain name at issue on May 26, 1998.
5. Parties’ Contentions
Complainant makes the following allegations. The factual elements of such allegations are generally accepted as true in the circumstances of this case in light of the Complainant’s supporting documents and in the absence of a response from the Respondent. The legal issues are discussed in the next section of this decision.
"VISOTEX registration of the domain lauresainclair.com aims at taking advantage of the complainant’s reputation in fraud and with bad faith.
The domain "lauresainclair.com" is now allocated to a web site dedicated to X goods and services."
The Respondent did not contest the above allegations of the Complainant.
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;
(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 used in bad faith.
A. Similarity of the Domain Name and Trademark.
Complainant has established her rights in the trademark "LAURE SAINCLAIR" with a trademark registration in France in 1996.
This panelist finds that <lauresainclair.com> is confusingly similar to the trademark "LAURE SAINCLAIR". The deletion of the space between the words "laure" and "sainclair", the use of lower case letter format and the addition of the gTLD ".com" are not significant in determining whether the domain name is identical or confusingly similar to the mark: see CBS Broadcasting Inc. v. Worldwide Webs, Inc., Case No. 2000-0834 (WIPO, Sept. 4, 2000).
Therefore, the Complainant has satisfied the first requirement.
B. Respondent’s Rights and Legitimate Interests.
The Complainant has established that the trademark has been registered in France. Such trademark registration was prior to the date on which the domain name was reserved. This panelist accepts that the Complainant is well known in France and Europe for her erotic films under the pseudonym Laure Sainclair.
The Complainant does not appear to have licensed or otherwise authorized the Respondent to use its trademark or to apply for any domain name incorporating the trademark. Therefore prior to any notice of this dispute, the Respondent had not used the domain name in connection with any bona fide offering of goods or services within the meaning of Paragraph 4 (c) (i) of the Policy.
Nor is there any evidence that the Respondent is commonly known by the domain name or is making a legitimate noncommercial or fair use of the domain name within the meaning of Paragraph 4 (c) (ii) or (iii) of the Policy.
By not submitting a response, the Respondent has failed to demonstrate, pursuant to paragraph 4(c) of the Policy, that it has rights or a legitimate interest in the domain name.
Therefore, the panelist concludes on the basis of the evidence of the Complainant that the Respondent has no rights or legitimate interests in the domain name.
C. Bad Faith Registration and Use.
Based on the facts as outlined above, it appears that the Respondent registered and is using the domain name in question to attract consumers so that they will access the web site operated by the Respondent.
That site is a hypertext link to what appears to be a number of pornographic sites containing texts, photos and X-rated videos for sale.
Therefore, it appears clear to the panelist that the Respondent has sought to increase the number of "hits" to its site by using the trademark "LAURE SAINCLAIR" as a domain name. That increases the commercial value of the Respondent’s site, but at the expense of misuse by the Respondent of the trademark in which the Complainant holds rights. This is evidence of bad faith under paragraph 4(b)(iv) of the Policy.
The panelist is satisfied that the Respondent registered and is using the domain name in bad faith in accordance with the criteria set out under paragraph 4(b)(iv) of the Policy.
For the foregoing reasons, the panelist holds:
(a) that the domain name is confusingly similar to the trademark "LAURE SAINCLAIR" in which the Complainant has rights;
(b) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(c) the Respondent registered and is using the domain name in bad faith.
Accordingly, pursuant to paragraph 4(i) of the Policy, the panelist decides that the domain name <lauresainclair.com> must be transferred to the Complainant.
Thomas H. Webster
Dated: March 26, 2001