The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).
The Complainant cites past decisions under the UDRP where the trade mark VIVENDI has been found to be distinctive, such as CAC Case 101875, VIVENDI v Phoenix Global Organization Incorporated. The Panel accepts that it is likely that the Respondent was aware of the Complainant in registering this name; the text VIVENDI was first used, it appears, as the name of the Complainant during corporate reorganisation in the late 1990s, and has been used extensively across multiple jurisdictions on a continuous basis since. The text VIVENDI does also appear in the Latin language (perhaps most familiar to English speakers as a part of the phrase 'modus vivendi' (derived from vivendus, which is the future passive participle of the basic term vivo (to live)). It is not impossible - albeit highly unlikely, on the evidence presented - that the Respondent had an alternative meaning in mind. The Respondent, through non-participation in the present proceedings, has not provided any support for this remote possibility.
Furthermore, the presence of pay-per-click advertising on the website at the disputed domain name, including in a way that appears to relate to the Complainant, points towards bad faith. This is therefore a case where the example given in paragraph 4(b)(iv) of the UDRP is relevant ('by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the] 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 [the] web site or location or of a product or service on [the] web site or location.'). The Respondent has taken no positive steps, to the knowledge of the Panel, to displace the likelihood of confusion through the use of a name corresponding closely to a trademark held by operated by the Complainant.
|