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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Compagnie Gervais Danone v. Sun Li

Case No. D2008-1933

1. The Parties

The Complainant is Compagnie Gervais Danone of Paris, France, represented by Cabinet Dreyfus & associГ©s of France.

The Respondent is Sun Li of Beijing, People’s Republic of China.

2. The Domain Name and Registrar

The disputed domain name <actimele.com> is registered with Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 17, 2008. On December 18, 2008, the Center transmitted by email to Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com a request for registrar verification in connection with the disputed domain name. On December 23, 2008, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com transmitted by email to the Center its verification response confirming that it is the of record, and also confirming, the registrant and contact information for the disputed domain name which differed from the named contact information in the Complaint. The Center sent an email communication to the Complainant on December 29, 2008 providing the correct Registrar and contact information, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on December 31, 2008. 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” or “UDRP”), 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 January 7, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 27, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 2, 2009.

The Center appointed Flip Petillion as the sole panelist in this matter on February 9, 2009. 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.

4 Factual Background

The Complainant is Compagnie Gervais Danone, a widely known company in fresh dairy products and bottled water.

The Complainant qualifies itself as the global leader in dairy products and number two in bottled water. One of the products it commercializes is ACTIMEL. The Complainant defines ACTIMEL as a probiotic drinking yogurt which helps support body’s defenses when consumed daily as part of a healthy balanced diet and lifestyle. The Complainant claims ACTIMEL to be present in more than 30 countries. The Complainant has registered international trademarks ACTIMEL, registered between October 20, 1994 and May 22, 2007.

The Complainant also owns several domain names including its trademark ACTIMEL.

The disputed domain name <actimele.com> was registered by the Respondent on June 14, 2008.

On July 31, 2008, the Complainant has notified to the Respondent that it considered the registration of the domain name <actimele.com> as an infringement to its IP rights, and asked Respondent to amicably transfer the domain name. Respondent failed to reply to Complainants request.

The disputed domain name is currently not actively used to point visitors to a website.

5. Parties’ Contentions

A. Complainant

The Complainant argues the following:

- the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

- the disputed domain name was registered and is being used in bad faith.

B. Respondent

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

6. Discussion and Findings

The burden that the Complainant must meet under paragraph 4(a) of the Policy is to prove:

(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) that the disputed domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.

As the Complainant sets out, the Respondent’s domain name <actimele.com> incorporates the Complainant’s trademark in its entirety with the mere adjunction of “e”. The test for identity or confusing similarity under the first element of the Policy is a direct comparison between the disputed domain name and the trademark at issue (AIDA Cruises German Branch of Società di Crociere Mercurio S.r.l. v. balata.com, Ltd, WIPO Case No. D2008-0110). The incorporation of a trademark in its entirety may be sufficient to establish that a domain name is identical or confusingly similar to Complainant’s registered trademark (AT&T Corp. v. William Gormally, WIPO Case No. D2005-0758).

In the present case there is a very clear similarity between the trademark ACTIMEL and the domain name <actimele.com>. The adjunction of “e” does not prevent the confusingly similarity between the trademark and the disputed domain name.

Therefore, the Panel agrees with the Complainant that the domain name <actimele.com> is confusingly similar to Complainant’s trademark ACTIMEL.

B. Rights or Legitimate Interests

As it is often impossible for a complainant to prove the negative fact that a respondent has no rights or legitimate interests in the disputed domain name, it is well accepted that a complainant must show a prima facie case that there are no rights or legitimate interests on the part of the Respondent. The burden of proof will then shift to the respondent (see Champion Innovations, Ltd. v. Udo Dussling (45FHH), WIPO Case No. D2005-1094; Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455 and Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110).

The Panel is satisfied that the Complainant has proven a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.

The Respondent does not appear to be commonly known under the name which is used for the disputed domain name.

Furthermore, the Respondent has not made significant use of the disputed domain name, as the domain name <actimele.com> is inactive. The Panel considers this to be another indication that the Respondent has no rights or legitimate interests in respect of the disputed domain name. (See Mediacorp Radio Singapore Pte Ltd v. HL Lim aka Hwee Lee Lim, WIPO Case No. D2004-0291).

Moreover, the Respondent is not affiliated with the Complainant in any way. The Complainant has not authorized the Respondent to use and register its trademark.

The Respondent did not file a Response and, therefore, failed to refute the Complainant’s prima facie showing on this matter.

C. Registered and Used in Bad Faith

According to paragraph 4 (a)(iii) of the Policy it is required that the Respondent registered and used the disputed domain name in bad faith.

1. Registration in Bad Faith

The Panel is of the opinion that the trademark of the Complainant undoubtedly is a widely-known trademark internationally, since ACTIMEL products have been largely sold in many countries.

The Responded registered the disputed domain name on June 14, 2008, by which time Complainant had been widely exploiting several domain names including its trademark ACTIMEL.

The Panel is of the opinion that it is impossible to conceive that the Respondent was unaware of the existence of the trademark ACTIMEL at the time he registered the disputed domain name.

The Respondent provides no evidence of a fair use which it could make of the disputed domain name.

For these reasons the Panel is of the opinion that there are sufficient grounds to conclude that the domain name <actimele.com> was registered in bad faith.

2. Use in Bad Faith

The four circumstances evidencing bad faith, set out in paragraph 4(b) of the Rules are examples without limitation of the fact that the domain name is also used in bad faith.

Mere passive holding of the domain names can in certain circumstances be evidence of use in bad faith. Examples of circumstances that can indicate bad faith include Complainant having a well-known trademark, no response to the complaint, and the impossibility of conceiving a good faith use of the domain name. (See Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574; Ladbroke Group Plc v. Sonoma International LDC, WIPO Case No. D2002-0131; Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003).

In the present case, the Respondent makes no active use of the domain name. Moreover, Respondent fails to respond to the Complaint. Furthermore, the Panel considers ACTIMEL to be a well-known trademark. The Panel could not conceive Respondent to make a good faith use of the domain name <actimele.com>.

For these reasons, the Panel is of the opinion that the domain name <actimele.com> was not only registered, but also used in bad faith.

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 <actimele.com> be transferred to the Complainant.

Flip Jan Claude Petillion
Sole Panelist

Dated: February 23, 2009