Источник информации:
официальный сайт ВОИС

Для удобства навигации:
Перейти в начало каталога
Дела по доменам общего пользования
Дела по национальным доменам

 

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 Complainant 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