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and Mediation Center
Marionnaud Parfumeries v. Balata, Inc.
1. The Parties
The Complainant is Marionnaud Parfumeries, having a place of business in Vincennes, France. The Complainant is represented by Mr. Olivier Legrand of Cabinet Legrand Lesage-Catel, of Paris, France.
The Respondent is Balata, Inc., with a P.O. Box in Tel Aviv, Israel. The Respondent
is not represented.
2. The Domain Name and Registrar
The disputed domain name is <marrionnaud.com>, registered with eNom, Inc
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 21, 2005. On March 23, 2005, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On March 24, 2005, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 8, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was April 28, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 11, 2005.
The Center appointed Zoltбn Takбcs as the Sole Panelist in this matter on May 27, 2005. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The language of the proceeding is English, that being
the language of the registration agreement.
4. Factual Background
The Complainant is one of the leading perfume distributors in Europe, active in 12 European countries.
The Complainant owns the French trade and service mark “MARIONNAUD” filed on July 16, 1997 and registered by the French Industrial Property Institute (“INPI”) under number 97/687 296, as well as the Community trade and service mark “MARIONNAUD” filed on October 14, 1997, and registered under number 650374, both for use in connection with wide variety of goods and services of classes 3, 5, 16, 35, 38, 39, 41 and 42 under common classification of the Nice Agreement Concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks. Both trademarks were registered and have been used in particular in connection with selling of soaps, perfumery, essential oils, cosmetics, and hair lotions, which products have been offered for sale and sold in a high number of MARIONNAUD outlets. These products have also been offered for sale and sold on-line by the Complainant through it’s websites “www.marionnaud.fr”, corresponding to the domain name registered by the Complainant on April 5, 2000, and “www.marionnaud.com”, corresponding to the domain name registered by the Complainant on November 1, 1997.
The Respondent is an Israeli company, which acquired
the disputed domain name <marrionnaud.com> on September 21, 2004. On March 18, 2005,
the contested domain name was used by the Respondent in a way which provided
access to a website at which perfumery, beauty products, cosmetics and similar
products were advertised and offered for on-line purchase.
5. Parties’ Contentions
The Complainant’s submissions can be summarized as follows:
The disputed domain name <marrionnaud.com> is confusingly similar to the trademark “MARIONNAUD” to which the Complainant has exclusive rights based upon the corresponding trademark registrations, in fact the only difference resulting from the doubling of the letter “r” in the contested domain name. This difference between the trademarks and the domain name is almost imperceptible visually, and virtually imperceptible phonetically. The Complainant alleges that the Respondent’s conduct is widely recognized as “typo squatting”, a behavior consequently condemned by the UDRP.
The Complainant further alleges that the Respondent has no rights or legitimate interest in respect of the disputed domain name. “Marrionnaud” is not the corporate name of the Respondent (Balata, Inc.), and the Complainant never authorized, licensed or otherwise allowed the Respondent to apply for and/or to use as a domain name confusingly similar variation of the Complainant’s trade and service mark “MARIONNAUD”.
The Complainant contends that the domain name was registered and being used in bad faith, because by using the domain name confusingly similar to the trademark of the Complainant for on-line offering and selling of the very same products as those of the Complainant the Respondent obviously intended to benefit from the mistyping of the Complainant’s trademark.
The Complainant seeks the transfer of the disputed domain name from the Respondent to the Complainant in accordance with paragraph 4(b)(i) of the Policy.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements in order to succeed with the Complaint:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights, and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name, and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel considers the disputed domain name <marrionnaud.com> confusingly similar to the Complainant’s registered mark “MARIONNAUD”.
The Complainant owns rights in the “MARIONNAUD” mark not only in its local, French jurisdiction, but also in 25 Member States of the European Union through the corresponding Community Trademark Registration “MARIONNAUD”.
The only difference between the disputed domain name <marrionnaud.com> and the Complainant’s registered “MARIONNAUD” mark is in doubling the letter “r” in the contested domain name.
This conduct commonly referred to as “typo squatting” creates a
virtually identical mark to the Complainant’s trademark, with intent to
capitalize on the inevitable flow of misdirected Internet traffic, and has been
condemned in a number of WIPO UDRP panel decisions. (See Deutsche Bank Aktiengesellschaft
v. New York TV Tickets Inc., WIPO Case
No. D2001-1314, The Nasdaq Stock Market, Inc. v. NSDAQ.COM, NASDQ.COM
and NASAQ.COM, WIPO Case No. D2001-1492,
Wachovia Corporation v. Peter Carrington, WIPO
Case No. D2002-0775).
In this case the visual comparison result in confusing similarity between the disputed domain name and the Complainant’s trademarks (marrionnaud v. marionnaud), while the phonetic comparison makes the domain name and the trademarks virtually identical.
The Panel finds that the contested domain name <marrionnaud.com> is confusingly similar to the Complainant’s “MARIONNAUD” trademark.
B. Rights or Legitimate Interests
Under paragraph 4(c) of the Policy, Respondents may demonstrate their rights and interests to the disputed domain name by showing any of the following circumstances, in particular but without limitation:
(i) their use of, or 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 before any notice to them of the dispute, or
(ii) they (as individuals, businesses, or other organizations) have been commonly known by the domain name, even if they have acquired no trademark or service mark rights, or
(iii) they are making a legitimate noncommercial 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.
The Respondent had the opportunity to respond and present any evidence that might have established rights or legitimate interests in the disputed domain name, but the Respondent did not make the best of this opportunity.
The Panel found no evidence, which would support the fact that the Respondent’s use of the domain name constitutes any of the above circumstances. There is no evidence that the Respondent has ever been known by the contested name or it has made noncommercial fair use of the domain name. To the contrary, the Respondent has used the disputed domain name solely for the purpose of misleadingly diverting Internet users for his commercial gain, which is clear violation of the Policy (paragraph 4(c)(iii).
In the circumstances, the Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the Respondent has registered or 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name, or
(ii) the 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 the Respondent has engaged in a patter of such conduct, or
(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor, or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s 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 the Respondent’s website or location or of a product or service on the Respondent’s website or location.
The domain name construed by the Respondent was in this Panel’s view, for sole purpose of capitalizing on misspelling of the “MARIONNAUD” trademark through the concept of typo squatting, conduct which has commonly and widely been recognized as a form of Internet cyber squatting and alone evidence of bad faith registration and use.
There is a good reason for the Panel to believe that the Respondent had actual or constructive knowledge of the Complainant’s rights in the “MARIONNAUD” trademark, because of the international recognition of the “MARIONNAUD” trademark and the fact that the disputed domain name <marrionnaud.com> ultimately diverted consumers to a website at which identical products to those of the Complainant were offered for sale.
Typo squatting is intentional misspelling of words with intent to intercept and redirect consumers who make typing errors from the intended destination to the typo squatter’s or affiliated websites, and it is reasonable for the Panel to conclude that the Respondent has intentionally attempted to attract for commercial gain, Internet users to the site <marrionnaud.com> by creating a likelihood of confusion with the Complainant’s “MARIONNAUD” trademark.
Such a conduct, often described as inherently parasitic constitute clear evidence
of registration and use of the domain name in bad faith under paragraph 4(b)(iv)
of the Policy, and the Panel finds that the Complainant has met its burden of
proof as to the bad faith and use of the domain name requirement of the Policy.
For all the foregoing reasons, in accordance with
paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the
domain name <marrionnaud.com> be transferred to the Complainant.
Dated: June 9, 2005