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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

La Franзaise des Jeux v. Admin - Field Lake and Sky LLC

Case No. D2007-0299

 

1. The Parties

The Complainant is La Franзaise des Jeux of Boulogne-Billancourt, France, represented by Inlex IP Expertise, France.

The Respondent is Admin - Field Lake and Sky LLC of Cheyenne, Wyoming, United States of America.

2. The Domain Name and Registrar

The disputed domain name <fdjeux.info> is registered with Spot Domain LLC dba Domainsite.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 1, 2007. On March 1, 2007, the Center transmitted by email to Spot Domain LLC dba Domainsite.com a request for registrar verification in connection with the domain name at issue. On March 5, 2007, Spot Domain LLC dba Domainsite.com 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 9, 2007. In accordance with paragraph 5(a) of the Rules, the due date for Response was March 29, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 2, 2007.

The Center appointed Brigitte Joppich as the sole panelist in this matter on April 17, 2007. 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 paragraph 7 of the Rules.

 

4. Factual Background

The Complainant is the French State lottery, La Franзaise des Jeux (commonly abbreviated FDJEUX), creating, developing and marketing lottery and sports betting games. Accordingly, the Complainant is the holder of, inter alia, a Community Trademark FDJEUX with a priority of February 9, 2001 (reg. No. 002082212, the “FDJEUX Mark”) as well as various second level domain names incorporating “fdjeux”.

The disputed domain name was originally registered by Agri, Lacus and Caelum LL.C. on October 13, 2005, and transferred to the Respondent probably on or around February 6, 2007 (according to the last update of whois data before listing the Respondent as registrant).

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are given in the present case:

(i) The domain name is identical to the Complainant’s trademark and domain names incorporating “fdjeux” as it contains only an abbreviation of the well-known name “La Franзaise des Jeux”, which is commonly used in France to designate the Complainant and is devoid of any other meaning.

(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name for several reasons: The company name and the FDJEUX Mark of the Complainant have been used since 1991 and are well-known in France, there is no activity of the Respondent under the name FDJEUX, the Respondent has never been authorized by the Complainant to use its trademarks, and there is no commercial relationship between the parties. The Complainant further states that the Respondent uses the disputed domain name to redirect Internet users to a website which contains commercial links related to lottery services, thus taking advantage of the Complainant’s fame and deceiving the user, which is contrary to the public interest safeguarded by the Complainant as a semi-public company.

(iii) The domain name was registered and is used in bad faith: The Complainant contends that while the contact information in the whois changed, the redirection to competing websites remained the same, that the Respondent is living in the United States of America and has no legitimate interest in a domain name closely related to commercial links in French language, and that the Respondent did not reply to the Complaint and is known as a cybersquatter. The Complainant further contends that the FDJEUX Mark is famous and that it is therefore inconceivable that the Respondent registered the domain name unaware of the Complainant’s prior rights. The content of the website under the disputed domain name makes the customers believe such site is related to the Complainant’s business.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Under paragraph 4(a) of the Policy, the Complainant must prove that each of the following three elements is present:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which 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 disputed domain name fully incorporates the Complainant’s FDJEUX Mark in which the Complainant has exclusive rights.

Furthermore, it is well established that the specific top level domain name is not an element of distinctiveness that can be taken into consideration when evaluating the identity and similarity of the complainant’s trademark and the disputed domain name (cf. Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2005-1525 - <magnumpiering.com> et al.; Phenomedia AG v. Meta Verzeichnis Com, WIPO Case No. D2001-0374 - <moor-huhn.com>).

Therefore, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by the Respondent, shall demonstrate its rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.

(i) before any notice to the respondent of the dispute, the use by the respondent 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; or

(ii) the respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or

(iii) the respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the service marks at issue.

The Respondent did not file a response in this proceeding. Therefore, the Complainant’s assertions that the Respondent lacks rights or legitimate interests stand unrebutted. Based on the evidence before the Panel, the Respondent apparently did not make any bona fide offering of goods or services in connection with the domain name and is neither commonly known by the domain name nor contends to make a legitimate non-commercial or fair use of the domain name. Accordingly, the Panel finds that the Complainant has proven that the Respondent has no rights or legitimate interests under paragraphs 4(a)(ii) and 4(c) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, i.e.

(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 the 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 pattern 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 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 the respondent’s website or location or of a product or service on its website or location.

The circumstances mentioned in paragraph 4(b) of the Policy are not exclusive, while the two elements of the third requirement of the Policy are cumulative conditions: the Complainant must show that the domain name was registered in bad faith and is being used in bad faith.

The Complainant is well-known internationally not only for its services but also for its activities as a sponsor of sporting events and teams. It is therefore inconceivable that the Respondent (or the earlier registrant) registered (or acquired) the disputed domain name (identical to the FDJEUX Mark) without knowing of the Complainant’s distinctive FDJEUX Mark.

Moreover, there are three facts indicating that the Respondent (Admin - Field Lake and Sky LLC) is most probably related, if not identical, to the earlier registrant of the disputed domain name (Agri, Lacus and Caelum LL.C.) and has therefore acquired the disputed domain name in bad faith: Firstly, the name of the Respondent seems – apart from the descriptive term “Admin” - to be a rough translation into English of the Latin words that make up the name of the earlier registrant, “agri” standing for “fields”, “lacus” for “lake”, and “caelum” for “sky”. Secondly, the redirection to websites of Complainant’s competitors remained similar (though not identical as the Complainant alleges) after the change of registrant. And thirdly, the transfer likely took place only after the Complainant’s lawyers had sent a warning e-mail to the earlier registrant on January 19, 2006.

Given these facts, the Panel is satisfied that the Respondent acquired (registered) the disputed domain name with full knowledge of the FDJEUX Mark and therefore in bad faith under paragraph 4(a)(iii) of the Policy.

Furthermore, by fully incorporating the FDJEUX Mark into the domain name and using the website under such domain name as a parking website, the Respondent is in all likelihood trying to divert traffic indented for the Complainant’s website to its own for the purpose of earning click-through-revenues from Internet users searching for the Complainant’s website. The use and exploitation of trademarks to obtain click-through revenues from the diversion of Internet users has in many decisions been found to be use in bad faith under paragraph 4(b)(iv) of the Policy (cf. L’Orйal, Biotherm, Lancфme Parfums et Beautй & Cie v. Unasi, Inc., WIPO Case No. D2005-0623 - <biothermcosmetics.com> et al., with further references).

As a result, the Panel finds that the Respondent has registered the domain name with knowledge of the Complainant’s trademark and has used the domain name in bad faith under paragraph 4(b)(iv) of the Policy, as it attempts to attract, for commercial gain, Internet users to its website 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 its website or location.

Therefore, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy.

7. Decision

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 <fdjeux.info> be transferred to the Complainant.


Brigitte Joppich
Sole Panelist

Dated: May 1, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0299.html

 

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