Decision for dispute CAC-UDRP-108908

It results from the Complainant's documented evidence, which remained undisputed, that it is a global player in yeasts and fermentation who manufactures and markets innovative solutions for baking, food taste, health care and biotechnology.

The Complainant runs a subsidiary ENVERA which is dedicated to the development of biological products using bacteria to solve contamination, unsustainable fuels, food shortages and diseases.

1.

The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.

The trademark <LESAFFRE> remains readily identifiable within the disputed domain name.

The fact that the element <envera-> is added, cannot exclude confusing similarity between the disputed domain name and the Complainant's registered marks.

Although the trademark registrations contain design elements the Panel finds that they satisfy the requirement that the complainant show “rights in a mark”. In addition, the Panel will focus on the non-design elements for purposes of assessing confusing similarity. In fact, Panel assessment of identity or confusing similarity involves comparing the (alpha-numeric) domain name and the textual components of the relevant mark. To the extent that design (or figurative/stylized) elements would be incapable of representation in domain names, these elements are largely disregarded for purposes of assessing identity or confusing similarity under the first element.

2.

In the absence of any Response, or any other information from the Respondent indicating the contrary, the Panel further holds that the Complainant successfully presented a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.

In particular, it results from the Complainant's undisputed allegations and evidence that the Respondent is not affiliated with nor authorized by the Complainant in any way, and he is not related in any way to the Complainant’s business. Moreover, the Respondent has not demonstrated any preparations to use the disputed domain name - which currently resolves to a parling page showing commercial links to competing offers - in connection with any bona fide offering goods or services. Finally, the Panel has not been presented any evidence that could lead the Panel to the conclusion that the Respondent is commonly known by the disputed domain name or that he has acquired trademark rights. In particular, the Respondent is not identified in the Whois database under the disputed domain name. 

3.

The Panel finds that the disputed domain name has been registered and is being used in bad faith.

While looking at the totality of the circumstances of the case, the Panel particularly considers the following documented factors - which have not been contested by the Respondent - to be relevant in reaching the conclusion that the Respondent was aware that he had no rights or legitimate interests in the disputed domain name, and that the disputed domain name has been registered and is being used in bad faith:

(1) The disputed domain name contains the Complainant's trademark <LESAFFRE> identically combined with the existing name of a subsidiary;

(2) The Complainant's trademark existed for more than 20 years;

(3) The disputed domain name resolves to a parking page with commercial PPC-links related, among other things, to the Complainant's core business, i.e. sustainable nutrition and fermentation. Therefore, the Panel holds that the Respondent has registered and is using the disputed domain name in order to intentionally attempt to attract, for commercial gain, Internet users to a web site, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation, or endorsement of his web site (para. 4(b)(iv) of the Policy);

(4) The fact that the disputed domain name identically includes the Complainant's trademark and the company name of a subsidiary and that the PPC-links refer to the Complainant's core business suggests the Respondent’s awareness of the Complainant's trademark and business;

(5) The Respondent failed to submit a response or to provide any evidence of actual or contemplated good-faith use or rights/legitimate interests;

(6) The implausibility of any good faith use to which the disputed domain name, containing the Complainant's trademark almost identically, may be put.

In the light of the above, the Panel finds that the Complainant has established all three elements of the Policy.