Michelin North America, Inc. v. Martin Vigo
Claim Number: FA1711001757466
Complainant is Michelin North America, Inc. (“Complainant”), represented by James M. Bagarazzi of Dority & Manning, Attorneys at Law, P.A., South Carolina, USA. Respondent is Martin Vigo (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <micheliners.com>, registered with Google Inc.
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 Panelist in this proceeding.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 7, 2017; the Forum received payment on November 7, 2017.
On Nov 08, 2017, Google Inc. confirmed by e-mail to the Forum that the <micheliners.com> domain name is registered with Google Inc. and that Respondent is the current registrant of the name. Google Inc. has verified that Respondent is bound by the Google Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 9, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 29, 2017 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@micheliners.com. Also on November 9, 2017, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
A timely Response was received and determined to be complete on November 24, 2017.
On November 28, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sebastian M W Hughes as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is part of the Michelin group of companies and the owner of numerous registrations in the USA for the well-known trademark MICHELIN (the “Trademark”), including United States federal registration No. 0,892,045 with a date of first use in commerce of 1907.
Respondent has no rights or legitimate interests in the disputed domain name, and has registered and used the disputed domain name in bad faith.
B. Respondent
Respondent contends as follows:
“I did not register micheliners.com with the intention of using it for anything related to the complainant’s business, nor to do anything related to domain hijacking.
The reason to register micheliners.com is purely to host at some point
a personal project, again, unrelated to Michelin’s business.
All the accusation made by the complainant are false and lack any evidence. Moreover, a simple WIPO search yields hundreds of results related to the complainant initiating domain disputes against anyone owning a domain remotely similar to Michelin.
I am an individual person without the knowledge, time, money and resources to deal with this. If Michelin is truly interested in micheliners.com domain, they can send me an email and make an offer.
Trying to obtain it through disputes and complaints without any evidence on wrong doing is unacceptable.”
Complainant has established all the elements entitling it to transfer of the domain name.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The disputed domain name incorporates the entirety of Complainant’s Trademark. It consists of the Trademark together with the non-distinctive suffix “ers”.
The Panel therefore finds that the disputed domain name is confusingly similar to the Trademark.
Complainant has accordingly made out the first limb under paragraph 4(a) of the Policy.
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a disputed domain name:
(i) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed 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 disputed domain name even if the respondent has acquired no trade mark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
Complainant has not authorised, licensed, or permitted Respondent to register or use the disputed domain name or to use the Trademark. The Panel finds on the record that there is therefore a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on Respondent to produce evidence to rebut this presumption.
Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has not been used.
The Panel does not find Respondent's bare assertion that Respondent intends to host at some point a personal project, unrelated to Michelin’s business, convincing.
There has been no evidence adduced to show that Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
In all the circumstances, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has accordingly made out the second limb under paragraph 4(a) of the Policy.
The Panel considers that, in all the circumstances, there is sufficient evidence to support the conclusion that Respondent was aware of Complainant and of its well-known Trademark at the time of registration of the disputed domain name. Respondent does not assert to the contrary in the Response.
Furthermore, the Panel considers Respondent’s assertion in the Response that Complainant should make an offer to Respondent to purchase the disputed domain name provides further evidence of bad faith under paragraph 4(b)(i) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <micheliners.com> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: November 30, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page