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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
La Française des Jeux v. L Welsr
Case No. D2002-0305
1. The Parties
Complainant in this proceeding is La Française des Jeux, 5-7 rue Beffroy, 92523 Neuilly sur Seine, France.
Respondent is L. Welsr, 1605 5th Avenue, suite 510, Seattle, WA 98101, United States of America.
2. The Domain Names and Registrar
This dispute concerns the domain names <wwwfdjeux.com> and <wwwfdjeux.net>.
The Registrar with which the domain name is registered is Innerwise, Inc. D/B/A ItsYourDomain.
3. Procedural History
The WIPO Arbitration and Mediation Center (the Center) received the complaint on March 29, 2002, (electronic version) and April 3, 2002, (Hardcopy). On April 8, 2002, the Center sent a request for registrar verification in connection with this case to Innerwise, Inc. The registrar verification response was received on April 19, 2002. The notification of complaint was transmitted on April 22, 2002, and the notification of the respondent’s default on May 13, 2002. The file was transmitted to the Sole Panelist on May 31, 2002.
4. Factual Background and The Parties’ Contentions
A. The Trademark
The complaint is based on the community trademark application "fdjeux" n° 002082212, filed on February 9, 2001, and on the community trademark application "fdjeux.com" n° 002083459, filed on the same day.
Complainant registered the domain names <fdjeux.com> and <fdjeux.net> and is currently using them for its online gaming services.
B. The Complaint
In its complaint Complainant alleges that the disputed domain names are identical or confusingly similar to Complainant's trademarks.
Complainant alleges that Respondent has no rights or legitimate interests in the domain names as Respondent does not have any trademark rights to the disputed domain names and has never been authorized, or otherwise permitted by the Complainant, to use any of its trademarks or to apply for or use any domain name incorporating any of these trademarks. Complainant also alleges that its trademark rights pre-date the registration by Respondent of the disputed domain names. Further, as Respondent is using the disputed domain names to attract Internet users to online casinos which users may mistake for that of Complainant's legitimate web sites, Complainant alleges that it amounts to an obvious and blatant strategy of trading upon the established reputation, goodwill and trademark rights of Complainant. Such a use cannot be regarded as legitimate.
Complainant alleges that Respondent has registered and used the domain names in bad faith as Respondent has clearly and intentionally attempted to attract, for commercial gain, Internet users to competing online casinos, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Complainant's web site or location of a product or service on Complainant's web site. Complainant further alleges that Respondent registered domain names mirroring domain names owned by Complainant primarily for the purpose of disrupting the business of a competitor.
C. The Response
The Respondent has not forwarded any response.
5. Discussion and Findings
a) Identical or Confusing Domain Name
Complainant filed trademark applications for "fdjeux" and "fdjeux.com". Pending trademark applications have been regarded as trademark rights in cases in which the marks had been used (see for example Worldblackbelt, Inc. v. Nationwide Communications, eRes Case No. AF-0881 (August 2, 2001), Bennett Coleman & Co Ltd v. Steven S. Lalwani/Bennett Coleman & Co Ltd v. Long Distance Telephone Company, WIPO Case No. D2000-0014 and The David J. Joseph Company v. Richard F. Barry, WIPO Case No. D2000-1418). Of course, there may be in this regard a difference between various legal systems as to how a trademark right may be acquired through use in the United States of America as opposed to through registration in the E.U. However, prima facie examination of the community trademark applications does not reveal an obvious ground for denying the registrations. Thus, the trademarks applications may be considered in the present case to suffice for the purpose of the ICANN Policy.
The adding of the letters "www" in front of Complainant trademarks in the disputed domain names is not a distinctive feature. It has already been stated that such an addition is not sufficient to avoid confusion (Infospace.com, Inc. v. Registrar Administrator Lew Blanck, WIPO Case No. D2000-0069).
b) Respondents Rights or Legitimate Interests in the Domain Names
Respondent defaulting in this present proceeding has not provided evidence of any circumstance giving rise to a right or to a legitimate interest in the domain names. On the contrary, the disputed domain names point to an Online casino. The use of domain names to misdirect Internet surfers to a web site offering services similar to that of Complainant cannot be considered a bona fide offering of goods or services (See <easyjet.net>, WIPO Case No. D2000-0024). Respondent has no legitimate interests in the disputed domain names as Respondent uses them to mirror Complainant’s own domain names, thus creating a likelihood of confusion for commercial gain.
c) Domain Name Registered and Used in Bad Faith
The registration of the disputed domain names by Respondent amounts to typographical cybersquatting. Indeed, Respondent has set up the web site at the domain names <wwwfdjeux.com> and <wwwfdjeux.net> to resolve without the "www", which then need not necessarily be typed on the web browser (for example, there is no need to type in <www.wwwfdjeux.com> in order to reach the respondent’s site). This is a deliberate attempt to exploit an Internet user’s typographical mistakes when seeking to reach the Complainant’s web site (see Infospace.com, Inc. v. Registrar Administrator Lew Blanck, WIPO Case No. D2000-0069). This clearly shows Respondent’s intention of misappropriating the established goodwill and reputation of Complainant and demonstrates that these registrations were made in bad faith.
Further, Respondent is a competitor of Complainant. By hosting an Online gaming site at the disputed domain names, Respondent is disrupting the business of a competitor. Internet users reaching the web site located at the disputed domain names are likely to associate the content of the web site with Complainant. Therefore, they will go on mistakenly, then unwillingly access the web site hosted at the disputed domain names instead of the web site they were originally trying to reach, namely Complainant’s.
In the light of the foregoing, the Panel decides that the domain names registered by Respondent are confusingly similar to the corresponding trademark applications of Complainant, that Respondent has no rights or legitimate interests in respect of those domain names and that the domain names in issue have been registered and are being used in bad faith by Respondent.
Accordingly the Panel requires that the registration of the domain names <wwwfdjeux.com> and <wwwfdjeux.net> be transferred to Complainant.
Dated: June 16, 2002