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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Elite Model Management, Elite Licensing Company S.A. v. Mard Peeters

Case No. D2007-1179

1. The Parties

The Complainants are Elite Model Management of Paris, France, and Elite Licensing Company S.A., of Fribourg, Switzerland, (together the “Complainants”), represented by Cabinet Degret, France.

The Respondent is Mard Peeters, of Netherlands.

2. The Domain Name and Registrar

The disputed domain name, <elite-models.org> (the “Domain Name”) is registered with eNom (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (“the Center”) on August 8, 2007. On August 13, 2007, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 14, 2007, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainants filed an amendment to the Complaint on August 20, 2007.

The Center verified that the Complaint together with the amendment to 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 August 24, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was September 13, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 17, 2007.

The Center appointed Tony Willoughby as the sole panelist in this matter on October 4, 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 the Rules, paragraph 7.

On August 27, 2007, the Complainants sought to put before the Panel a supplemental filing. The Panel sees no need to accept the filing and declines to do so.

4. Factual Background

The Complainants are members of a group of companies known as the Elite Group. For the purposes of this decision, the Panel treats them as one.

The Complainants claim to be the proprietors of one of the world’s leading modeling agencies and produce a wealth of evidence in support of the claim.

The Complainants are the proprietors of various trademark registrations covering in one shape or form the word ELITE. One such is International Trademark No. 442,385 ELITE Elite Model Management (device) dated December 6, 1978 in classes 35, 41 and 42 for inter alia modeling services. Another is Benelux registration No. 456,109 ELITE (stylized script) dated November 25, 1988 in classes 16, 25, 35 and 41 for inter alia modeling services.

The Domain Name was registered on November 17, 2006 and is currently connected to the Respondent’s trading website, which offers a variety of personal services in association with the ladies, whose pictures are featured on the site.

5. Parties’ Contentions

A. Complainants

The Complainants contend that the Domain Name is confusingly similar to the Complainants afore mentioned registered trademarks.

The Complainants contend that the Respondent has no rights or legitimate interests in respect of the Domain Name, contending that the Respondent is not known by the Domain Name or any similar name, that the Respondent is not licensed by the Complainants to use the name, that the Respondent is not making a non-commercial or fair use of the name and that the commercial use that the Respondent is making of the Domain Name is a deliberate attempt to misappropriate the goodwill of the Complainants.

Finally, the Complainants contend that the Domain Name was registered and is being used in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.

B. Respondent

The Respondent did not reply to the Complainants’ contentions.

6. Discussion and Findings

A. General

According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainants must prove that:

(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainants have 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 in bad faith and is being used in bad faith.

B. Identical or Confusingly Similar

The Domain Name comprises (a) the word “Elite”, which is the distinctive element of the Complainants’ name and the prominent element of their trademark registrations, (b) the word “models”, which describes the subject matter of their agency, and (c) the domain suffix which can be ignored (along with the hyphen) for the purposes of this assessment.

The Panel finds that the Domain Name is confusingly similar to a trademark or service mark in which the Complainants have rights.

C. Rights or Legitimate Interests

The Respondent is using the Domain Name commercially to conduct what is alleged by the Complainants to be an ‘adult’ personal services business. The Panel agrees. The Complainants contend that insofar as this service is directed to France, it is a criminal offence under French law.

The Complainants have put substantial evidence before the Panel to demonstrate that for a long time the Complainants and their Elite modeling agency have been very well-known internationally as one of the leading modeling agencies in the world. The Panel is satisfied that when the Respondent registered the Domain Name and set up his business he was likely to have been well aware of the fame of the Complainants’ modeling agency

If the Complainants had not been as well-known as they are (employing many of the best known international fashion models), it might have been open for the Respondent to contend that he had merely ‘innocently’ combined two ordinary English words for the name of his business, one word being a laudatory term and the other word being a term to describe the ladies he employs.

As it is, the Complainants are internationally well-known and the Respondent is likely to have been well aware, as the Complainants allege, of the Complainants’ fame as a modeling agency. As the Complainants further allege, the Respondent is likely to have banked on gaining a benefit from Internet users assuming that his service was in some way associated with the Complainants. The allegation (and indeed the threat) is far from fanciful. The Complainants have produced articles from the British press reporting on misconceived allegations that the Complainants’ services went beyond fashion modeling services.

The Complainants have made out a prima facie case and it is for the Respondent to answer that case, but the Respondent has not responded.

On the evidence before him, the Panel is satisfied that none of the examples of rights and legitimate interests set out in Paragraph 4(c) of the Policy applies and, in the absence of a Response from the Respondent, the Panel cannot see how the Respondent might reasonably be said to have rights or legitimate interests in respect of the Domain Name.

The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.

D. Registered and Used in Bad Faith

Registering and using a domain name, which is known to be confusingly similar to a complainant’s trademark, in circumstances where the registrant is intending to benefit commercially from confusion among Internet users (the confusion arising from the confusing similarity of the domain name to the complainant’s trademark) is, on its face, an abuse within the meaning of Paragraph 4(b)(iv) of the Policy.

This is what is alleged here; and, in Section B above, the Panel has already found on the unchallenged evidence before him that the allegation is made out.

The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(iv) 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, <elite-models.org>, be transferred to Elite Model Management.


Tony Willoughby
Sole Panelist

Dated: October 18, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1179.html

 

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