Mr. Kylian Mbappe Lottin v. k al
Claim Number: FA1708001745425
Complainant is Mr. Kylian Mbappe Lottin (“Complainant”), represented by Jean-Remi Cognard of 57 bis boulevard de Rochechouart, France. Respondent is k al (“Respondent”), Saudi Arabia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kylianmbappe.com>, registered with GoDaddy.com, LLC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 21, 2017; the Forum received payment on August 21, 2017.
On Aug 23, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kylianmbappe.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 August 24, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 13, 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@kylianmbappe.com. Also on August 24, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 18, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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 the domain name be transferred from Respondent to Complainant.
A. Complainant
Trademark/Service Mark Information: Rule 3(b)(viii).
Kylian Mbappe Lottin is, as of today, an 18 year old French football player. He currently plays for the Monaco team and is now regularly called in the French national team.
Kylian Mbappe Lottin played his first professional game on December 2, 2015.
h
He
scored his first professional goal on February 20, 016 at the age of 17, beating
the previous record of Thierry Henry scoring for Monaco.
During summer 2016, he successively won the young players ' French national cup (coupe Gambardella) and the under 19 European championship.
Despite his young age, Mr. Kylian Mbappe Lottin is already an internationally notorious football star. He scored 21 goals last season (2016/2017), including 6 in the UEFA Champions League competition (i.e. highest clubs competition in Europe). In May 2017, he was awarded the young player prize of the French football championship.
He was also elected to be part of the squad of the 2016/2017 season of the French championship and of the 2017 UEFA Champions' League.
During summer 2017, he is expected to beat the world record transaction for a football player (120.000.000 pounds). He already is the most valuable player of the French championship.
As a person, Kylian Mbappe holds rights on his name and as such he is fully entitled to prevent third parties, such as Mr. al-Humaidan, from using his name without his prior formal consent. Moreover, as a world-known football player, his name constitutes a valuable asset, which may be licensed to clubs and to various sponsors.
\
On August 12015, Kylian Mbappe conceded to Nike a license in order to use his name KYLIAN MBAPPE to promote their football shoes. Since then, the name KYLIAN MBAPPE has been used by Kylian Mbappe as a mark to refer to himself and to be associated with his sponsors. Kylian Mbappe being a famous football player, his name, as a mark, acquired a secondary meaning, not only referring to Kylian Mbappe as a person, but as a famous valuable football player. From this date onwards, KYLIAN MBAPPE has become a distinctive identifier associated with Kylian Mbappe.
Since that date, the use of KYLIAN MBAPPE as a valuable identifier has never stopped. In early July 2017, Kylian Mbappe renewed his sponsorship contract with Nike for the next 9 years and a large, yet discretionary, amount. The core idea underlying the contract is to associate Kylian Mbappe's name and image with Nike's football shoes. Kylian Mbappe is now wearing personal boots designed by Nike.
Furthermore, KYLIAN MBAPPE is also used by Kylian Mbappe's club (AS Monaco) to sell jerseys on the back of which Kylian Mbappe's name is written. This use dates back from the signature of Kylian Mbappe's first professional contract as a football player, i.e. March 2016.
Kylian Mbappe is also using his name, image and fame on the social networks. He currently has 1.9 million fans on Instagram and 248.000 followers on Twitter.
FACTUAL AND LEGAL GROUNDS
This Complaint is based on the following factual and legal grounds: UDRP Rule 3(b)(ix).
[a.] Specify in the space below the manner in which the domain name(s) is/are identical or confusingly similar to a trademark or service mark in which the Complainant has rights. UDRP Rule 3(b)(ix)(J); UDRP Policy ¶4(a)(i).
Kylian Mbappe does not hold any trademark registrations with a national trademark authority on the KYLIAN MBAPPE mark. Yet, the National Arbitration Forum's panels have already noted that a trademark registration is not required under Policy 4(a)(i) if Complainant can demonstrate common law rights in the mark. See Matteo Manassero v. Christian Ladimir, FA1437545 (Forum May 10, 2012) and Adrian Lewis Peterson v. ChrisCabrera.com, FA1433185 (Forum April 23, 2012).
Kylian Mbappe's name has acquired secondary meaning based on his sudden but already widespread fame as a professional football player. His name and image have become extremely valuable assets which Kylian Mbappe uses for commercial purposes (sponsorship contract with Nike) and in his public relations (Instagram, Twitter). Despite his young age, Kylian Mbappe is already the most valuable player of the French championship.
Following that, Kylian Mbappe holds rights in the KYLIAN MBAPPE mark under Policy 4(a)(i). See Estate of Tupac Shakur v. Shakur Info Page, AF-0346 (eResolution Sept. 28, 2000) ("A person may acquire such a reputation in his or her own name as to give rise to trademark rights in that name at common law...").
Respondent's <kylianmbappe.com> domain name is almost identical to KYLIAN MBAPPE mark, as it merely removes the space and adds the generic top-level domain ("gTLD") ".com", failing to distinguish the disputed domain name.
That is why the disputed domain name is confusingly similar to KYLIAN MBAPPE's common law mark.
[b.] Specify in the space below why the Respondent (domain-name holder) should be considered as having no rights or legitimate interests in respect of the domain name(s) that is/are the subject of the complaint. UDRP Rule 3(b)(ix)(2); UDRP Policy ¶4(a)(ii). The Panel may consider any relevant aspects included in, but not limited to UDRP Policy ¶4(c).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Matteo Manassero v. Christian Ladimir, FA1437545 (Forum May 10, 2012).
Respondent has never been authorized by Kylian Mbappe to use his name. Respondent is not commonly known by the disputed domain name, as the WHOIS information named "Khal id al-Humaidan" as registrant of the disputed domain name. See Adrian Lewis Peterson v. ChrisCabrera.com, FA 1433185 (Forum April 23, 2012).
Moreover, Respondent is not using the domain name for a bona fide offering of goods and services or for a legitimate non-commercial fair use. He is only using the domain name to host a few photographic images of Kylian Mbappe, which are successively displayed in a full page format. The words Kylian Mbappe are written in the bottom left corner. Links towards Kylian Mbappe 's official Twitter and Instagram's accounts appear in the bottom right corner. There is also a contact e-mail link, misleading the visitors into believing they are writing to Mr. Kylian Mbappe.
The disputed domain name is only used to divert Internet users seeking online content associated with Kylian Mbappe. Such an intent can be inferred from Respondent's use of a domain name which is identical to Kylian Mbappe's mark. Such a general intent is not a bona fide offering of goods or services or a legitimate non-commercial or fair use. See David Duchovny v. Albert Hot Rods clo Jeff Burgar , FA l 734414, (Forum, July 4, 2017).
Such a very passive use of the disputed domain name is also revealing that Respondent has no serious intent to use it for offering goods and services or promoting a non-commercial cause, but only for cybersquatting purpose.
Kylian Mbappe is currently about to launch a website related to his personality, as a football player. This website would be dedicated to his fans, sponsors and to the medias. It may soon evolve to integrate an e-shop, in which official products using Kylian Mbappe's image and name would be sold to the fans.
So far, Kylian Mbappe has already booked the following domain names:
kylianmbappe.world
kylianrnbappe.paris
kylianrnbappe.org
kylianmbappe.pro
kylianrnbappe.fr
kylian-mbappe.fr
However, the most important domain name concerning an international football star is obviously kylianrnbappe.com
(c.) Specify in the space below why the domain name(s) should be considered as having been registered and being used in bad faith. UDRP Rule 3(b)(ix)(3); UDRP Policy ¶4(a)(iii). The Panel may consider any relevant aspects included in, but not limited to UDRP Policy ¶4(b).
Mr. al-Humaidan's booking of the domain name is dated November 25, 2016. At this date, Kylian Mbappe had already:
Won the Gambardella Cup;
Won the European Championship;
Completed his first professional appearance;
Scored his first professional goal.
At this time of the football season, Mr. Kylian Mbappe was precisely beginning to play more and more matches as a football player and was beginning to be famous thanks to his amazing and early performances.
The registration of the disputed domain name at a time when Kylian Mbappe began to become a rising star constitutes a strong evidence of opportunistic bad faith. See Matteo Manassero v. Christian Ladimir, FA1437545 (Forum May 10, 2012).
Despite a formal notice dated May 22, 2017, Mr. al-Humaidan did not answer my client's claim for transferring the domain name kylianmbappe.com.
Furthermore, failure for Respondent to make an active use of the disputed domain name supports a finding of bad faith. See David Duchovny v. Albert Hot Rods c/o Jeff Burgar , FA l 734414, (Forum, July 4, 2017).
The abovementioned facts show that Mr. al-Humaidan's only purpose on booking kylianmbappe .com was bad faith cybersquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:
(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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant did not register his name with any national trademark agency as a mark. Complainant is not required to register his mark under the UDRP, but may show common law rights to the mark under Policy ¶4(a)(i). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1625750 (Forum July 17, 2015) (“Complainant does not claim to own a trademark registered with a governmental authority. However, Policy ¶4(a)(i) does not require such registration if a complainant can demonstrate having common law rights.”).
Complainant claims common law rights to the KYLIAN MBAPPE mark. Complainant’s name has acquired a secondary meaning due to his sudden widespread fame in football. Complainant has a Nike sponsorship and extensively uses social media. His name has become a valuable asset. Celebrity names have a secondary meaning and the celebrity generally has common law rights to their mark. See David Duchovny v. Alberta Hot Rods c/o Jeff Burgar, FA 1734414 (Forum July 4, 2017) (holding that David Duchovny held common law rights in the DAVID DUCHOVNY mark because of his status as a celebrity). Complainant has common law rights under Policy ¶4(a)(i) because the KYLIAN MBAPPE mark has acquired a secondary meaning.
Complainant claims the disputed domain name is identical to the KYLIAN MBAPPE common law mark. A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs. Respondent’s domain name completely incorporates Complainant’s mark. See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”). The disputed domain name is identical to Complainant’s mark under Policy ¶4(a)(i).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant claims Respondent is not commonly known by the disputed domain name. Complainant has not licensed or authorized Respondent to use the KYLIAN MBAPPE mark. Absent information in the record to the contrary, the WHOIS information and common sense allow the Panel to decide Respondent is not commonly known by the domain name under Policy ¶4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The WHOIS information of record names Respondent as “Khalid al-Humaidan.” There is no obvious relationship between Respondent’s name and the disputed domain name. Respondent is not commonly known by the disputed domain name under Policy ¶4(c)(ii).
Complainant claims Respondent made no bona fide offer of goods or services nor a noncommercial or fair use of the disputed domain name. Respondent only uses <kylianmbappe.com> to showcase photos of Complainant and provides a fake email address to induce users to email Respondent (who appears to be impersonating Complainant). Respondent may not impersonate Complainant to acquire rights to a domain name. Respondent’s web site at the disputed domain name does not constitute a fan club in any fair sense of the word. See YETI COOLERS, LLC v. Christian Bugge / Rebel Media, FA 1709712 (Forum Feb. 1, 2017) (“In limited circumstances the owner of a fan site may have a legitimate interest in a domain name for the purposes of the Policy. Here, there is no evidence of an active website. Accordingly, there is no evidence of use or demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services (paragraph 4(c)(i)) and no evidence that Respondent is making a legitimate noncommercial or fair use of the domain name (paragraph 4(c)(iii)).”). Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶¶4(c)(i) and (iii).
The Panel finds Policy ¶4(a)(ii) satisfied.
While Complainant has not made specific arguments under Policy ¶4(b), such arguments are not required under the Policy-as long as Complainant shows bad faith use and registration in some manner. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant claims Respondent registered and is using the disputed domain name in bad faith. Respondent registered <kylianmbappe.com> after Complainant had recently achieved significant fame in the football world. Respondent’s registration soon after Complainant’s rise to fame constitutes opportunistic bad faith. See Arizona Board of Regents, for and on behalf of Arizona State University v. Weiping Zheng, FA1504001613780 (Forum May 28, 2015) (finding that the respondent had acted in opportunistic bad faith according to Policy ¶4(a)(iii), when it registered the disputed domain name just one week after the complainant filed applications to register the SUB DEVIL LIFE mark, and just days after those applications became public through the USPTO’s website).
Complainant claims Respondent registered and used <kylianmbappe.com> in bad faith because Respondent has failed to make active use of the disputed domain name. While an inactive holding of a disputed domain name can support a showing of bad faith under Policy ¶4(a)(iii), that is not the case here. Respondent essentially appears to be passing itself off as Complainant by having a web site consisting of photos and an email link (inter alia). There is no doubt such actions constitute bad faith registration and use, see Textron Innovations Inc. v. Textron Sistemi di Fissaggio srl, FA1705001732602 (Forum July 6, 2017).
The Panel notes the WHOIS information appears to be false. The name “K Al” is improbable (although this Panel will admit the singer Prince changed his name to a single unpronounceable character for seven years before going back to his original name). The designation of “Main Street” without a number sounds very much like it was fabricated. In a commercial context, providing false WHOIS information raises a rebuttable presumption of bad faith registration and use, see Warner Bros. Entertainment Inc. v. David Haddad / Warner Bros, FA1706001736053 (Forum July 17, 2017), White Oak Entertainment, LLC - DBA The Chateau at White Oak Vineyard v. Al Perkins, FA1611001702045 (Forum December 12, 2016), and Eastman Kodak Company v. free enda / upot, FA1610001698767 (Forum November 23, 2016). Respondent has done nothing to rebut that presumption, so this Panel will also find bad faith registration and use on those grounds.
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <kylianmbappe.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Wednesday, September 20, 2017
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