FIRST CONDITION
Given that
1. The domain name contains the Complainant’s trademark in its entirety;
2. The addition of dashes “-“ and of the letters “FR” corresponding to France, is not sufficient to escape the finding that the domain name is confusingly similar to the trademark HARMONIE MUTUELLE;
3. When a distinctive mark is paired with less distinctive terms, the combination will typically be found to be confusingly similar to the distinctive mark (WIPO D2007-1140-MasterCard International Incorporated v. Michael J Yanda, Indy Web Productions; WIPO D2001-0026-Arthur Guinness Son & Co. (Dublin) Limited. V. Tim Healy/BOSTH; WIPO- D2000 1487- Heineken Brouwerijen B.V. v. Mark Lott);
4. The Google search made by the Complainant on the wording HARMONIE MUTUELLE® displays several results, all of them being related to the Complainant. The expression HARMONIE MUTUELLE® is thus only known in relation to the Complainant;
5. The Respondent does not dispute that the Domain Name is confusingly similar to the trademark in which the Complainant has rights;
Therefore the Panel concludes that the first requirement of paragraph 4(a)(i) of the Policy is satisfied.
SECOND CONDITION
The Respondent does not oppose to the fact that the trademark is famous and that it was aware of its existence when registering the domain name. Moreover, when the Respondent claims that its project was "to make a directory website of the main Harmonie Mutuelle French agencies, by gathering information such as phone numbers, address, town, like there are already registered on other comparison website", it admits that it was aware of the existence of the Complainant.
The Respondent does not oppose to the argument that it is not a subsidiary of the Complainant, or a member of the same group, or a commercial partner, or connected in any way with the Complainant.
The Complainant’s assertions that the Respondent is not commonly known by the disputed domain name and is not affiliated with the Complainant are sufficient to constitute a prima facie showing of absence of rights or legitimate interest in the disputed domain name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name. The Respondent has failed to do so.
However, the project of the Respondent could be, depending on the circumstances, considered as a right or legitimate interest, within the meaning of paragraph 4(a)(ii) of the Policy, but the Respondent has not produced any evidence to support such finding. The Panel cannot simply believe the Respondent’s assertions if they are not supported by solid evidence.
Consequently, the Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the Domain Name (within the meaning of paragraph 4(a)(ii)of the Policy).
THIRD CONDITION
The use of a privacy service cannot be, in itself, evidence of bad faith (WIPO D2007-795). However, the Respondent fails proving that its purpose was to make a directory website of the main Harmonie Mutuelle French agencies (not any document or evidence). The Panel cannot trust the Respondent if it does not produce any evidence of the alleged preparatory acts. This circumstance, together with the use of privacy service and the fact that the project was centered around the Complainant (providing information on the Complainant), is sufficient in the Panel view to demonstrate bad faith registration and use. (see also WIPO D2001-0087, General Electric Company v. CPIC NET and Hussain Syed ; WIPO D2000-0003-Telstra Corporation Limited v. Nuclear Marshmallows ; WIPO D2000-0400- CBS Broadcasting, Inc. v. Dennis Toeppen).
In addition, the Respondent does not explain the rationale behind its alleged project. The creation of such information page in relation with a famous trademark typically amount to traffic diversion and constitute evidence of bad faith use.
Accordingly, for the reasons discussed above, the Complainant has, to the satisfaction of the Panel, shown the Domain Name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii)of the Policy).
|