COMUTO S.A.S. v. bonzet harald et al.
Claim Number: FA1509001638399
Complainant: COMUTO S.A.S. of Paris, France.
Complainant Representative: NAMESHIELD of Angers, France.
Respondent: bonzet harald of montignac de lauzun, France.
bonzet harald of montignac de lauzun, International, FR.
LWS Societe of Paris, FR.
Urban-Ski-France of Montignac de Lauzun, France.
REGISTRIES and REGISTRARS
Registries: STARTING DOT LIMITED
Registrars: Key-Systems, LLC
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding.
Flip Jan Claude Petillion, as Examiner.
Complainant submitted: September 18, 2015
Commencement: September 18, 2015
Response Date: September 29, 2015
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").
The Examiner notes that the response has been submitted in French. Pursuant to URS Rule 9 (c), the Examiner will determine in which language to issue its Determination, in its sole discretion. The Examiner confirms he is fluent in French and English, as required by the Rules. In view of the cursory nature of the Response and the fact that Respondent shows to understand English, it seems appropriate to, and the Examiner decides to issue the Determination in English.
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
Findings of Fact: Complainant operates a ridesharing website and uses its Bla bla Car trademark in connection with its services. Complainant holds trademark registrations for its Bla bla Car trademark in France. Respondent registered the disputed domain name on September 15, 2015. The disputed domain name is used to redirect to the registrar’s parking page.
URS Procedure 1.2.6, requires Complainant to prove, by clear and convincing evidence, each of the following three elements to obtain an order that a domain name should be suspended.
[URS
1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark:
(i) for which the Complainant holds a valid national or regional registration
and that is in current use; or
(ii) that has been validated through court proceedings; or
(iii) that is specifically protected by a statute or treaty in effect at the
time the URS complaint is filed.
Determined: Finding for Complainant
Complainant shows to be the holder of at least one valid national registration in the Bla bla Car trademark and that the trademark is in current use. Examiner finds that the disputed domain name <blablacar.ski> is confusingly similar to the most distinctive element of Complainant’s Bla bla Car Trademark. The new gTLD “.SKI" is generic as compared to the distinctive expression "BLABLACAR", and therefore does not eliminate the likelihood of confusion with the Complainant’s Bla bla Car Trademark. Respondent does not contest this.
Therefore, Examiner finds that the first element for Complainant to obtain the suspension of a domain name under URS 1.2.6.1 has been proven.
[URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name.
Determined: Finding for Complainant
Complainant has not authorized Respondent to use its registered Bla bla Car trademark. Respondent has not submitted any evidence to prove that he is commonly known as Bla bla Car or under the disputed domain name. There is no evidence about rights or legitimate interest in Bla bla Car and the disputed domain name, or evidence about a fair use either. Respondent does not contest the arguments of Complainant. Therefore, Examiner finds that the second element for Complainant to obtain the suspension of a domain name under URS 1.2.6.2 has also been proven.
[URS
1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
a. Registrant 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 documented out-of pocket costs directly related to the domain name;
or
b. Registrant has registered the domain name in order to prevent the trademark
holder or service mark from reflecting the mark in a corresponding domain name,
provided that Registrant has engaged in a pattern of such conduct; or
c. Registrant registered the domain name primarily for the purpose of disrupting
the business of a competitor; or
d. By using the domain name Registrant has intentionally attempted to attract
for commercial gain, Internet users to Registrant’s web site 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 Registrant’s web
site or location or of a product or service on that web site or location.
Determined: Finding for Complainant
The passive holding of a domain name can constitute bad faith registration and use, especially when combined with other factors such as the respondent preventing a trademark or service mark holder from reflecting its mark in a corresponding domain name, the failure of the respondent to respond to the complaint, inconceivable good faith use, etc. (See e.g., Telstra Corporation Limited, Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003; Myer Stores Limited v. Mr. David John Singh, WIPO Case No. D2001-0763; Liu.Jo S.p.A. v. Martina Hamsikova, WIPO Case No. D2013-1261). In the present case, Respondent is passively holding the disputed domain name as it simply redirects to the registrar’s parking page.
It is inconceivable to the Examiner that Respondent was unaware of Complainant and its trademark rights when it registered the disputed domain name which is confusingly similar to Complainant’s Bla bla Car trademark. The domain name was registered during the trademark claims period for the .SKI gTLD. Complainant’s trademark was validated by the Trademark Clearinghouse prior to the registration of the dispute disputed domain name. As a result, Respondent must have been given a trademark claims notice of Complainant’s rights in the Bla bla Car trademark. Moreover, Complainant provided evidence of the Bla bla Car trademark’s reputation in France. Given that Respondent resides in France, it is apparent that Respondent had Complainant in mind when registering the disputed domain name.
Respondent filed a response in which it only contests the finding of bad faith. However, Respondent does not develop any arguments to substantiate its response. The Respondent does not demonstrate any use of the domain in connection with a bona fide offering of goods or services in any commerce. Neither is the Respondent providing evidence of any legitimate non-commercial or fair use of this domain name. Therefore, Examiner finds that the third element for Complainant to obtain the suspension of a domain name under URS 1.2.6.3 has been proven.
The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods.
The Examiner finds as follows:
1. The Complaint was neither abusive nor contained material falsehoods.
After reviewing the parties’ submissions, the Examiner determines that
the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain names be SUSPENDED for the duration of the registration.
1. blablacar.ski
Flip Jan Claude Petillion, Examiner
Dated: October 8, 2015
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