WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Association Enseignement Supérieur Commercial v. Belize Domain WHOIS Service Lt.

Case No. D2010-0445

1. The Parties

The Complainant is Association Enseignement Supérieur Commercial of Ecully France, represented by Nameshield, France.

The Respondent is Belize Domain WHOIS Service Lt. of Belize, Wisconsin, United States of America, of United States of America.

2. The Domain Name and Registrar

The disputed domain name <emlyon.com> is registered with Intercosmos Media Group d/b/a directNIC.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 23, 2010. On March 24, 2010, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the disputed domain name. On Mar 24, 2010, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 9, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 29, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 11, 2010.

The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on May 14, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

The complainant is a European Business School founded in 1872, devoted to long life learning for entrepreneurial and international management.

The Complainant owns trademark registrations for OAMI trademark registrations for EMLYON THE EUROPEAN INSTITUTION FOR LIFELONG LEARNING, Reg. No. 003661667 and EMLYON I.F.G.E INSTITUT FRANCAIS DE GOUVERNEMENT DES ENTERPRISES Reg. No. 003661642.

The disputed domain name <emlyon.com> was registered on August 16, 2004.

5. Parties' Contentions

A. Complainant

The Complainant contends the following:

That the Complainant is a European Business School devoted to lifelong learning for entrepreneurial and international management which represents 3,000 students, more than 5,000 managers and leaders, 300 employees, 565 contributors, more than 11,800 graduates in 96 countries, and 100 Universities of Business Schools International partners.

Furthermore, the Complainant contends that it owns OAMI trademark registrations for EMLYON THE EUROPEAN INSTITUTION FOR LIFELONG LEARNING, Reg. No. 003661667 and EMLYON I.F.G.E INSTITUT FRANCAIS DE GOUVERNEMENT DES ENTERPRISES Reg. No. 003661642, both granted on February 12, 2004.

In that connection, the Complainant contends that the disputed domain name <emlyon.com> is identical or confusingly similar to its trademarks EMLYON, which is incorporated in its entirety in the disputed domain name.

Moreover, the Complainant contends that it hold the domain names <emlyon.fr>, <em-lyon.fr>, <emlyon.eu>, <em-lyon.org>, <em-lyon.es>, <em-lyon.asia>, <em-lyon.biz>, <emlyon.tv>, <em-lyon.tv> and <em-lyon.jp>.

On the other hand, the Complainant contends that the Respondent does not have any right or legitimate interest in connection with the disputed domain name as the Complainant has not licensed or otherwise permitted the Respondent to use its trademark nor to register or use any domain name incorporating it.

The Complainant also contends that the Respondent is not known and does not have any trademark rights under the disputed domain name.

Furthermore, the Complainant also contends that the disputed domain name <emlyon.com> was registered and is being used in bad faith.

In that connection, the Complainant contends that the Respondent was aware of its trademark EMLYON when registering the disputed domain name.

Furthermore, the Complainant contends that by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant's trademark EMLYON as to the source, sponsorship or affiliation of the Respondent's website.

For all the above-mentioned the Complainant requests that the disputed domain name be transferred to it.

B. Respondent

The Respondent did not reply to the Complainant's contentions.

6. Discussion and Findings

For the Complaint to succeed in a UDRP proceeding, under paragraph 4(a) of the Policy, the Complainant must prove that:

(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) The disputed domain name has been registered and is being used in bad faith.

In accordance with paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.

A. Identical or Confusingly Similar

The Complainant has filed relevant evidence showing that it holds OAMI registrations for EMLYON THE EUROPEAN INSTITUTION FOR LIFELONG LEARNING and EMLYON I.F.G.E INSTITUT FRANCAIS DE GOUVERNEMENT DES ENTERPRISES.

The Panel finds that EMLYON is the most distinctive term in the Complainant's trademark.

In view of the foregoing, the Panel finds that the disputed domain name <emlyon.com> is confusingly similar to a trademark in which the Complainant has rights, and therefore, the Complainant has succeeded on this first element under the Policy.

B. Rights or Legitimate Interests

According to paragraph 4(a)(ii), the second element that the Complainant must prove is that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Policy in its paragraph 4(c) sets out various ways in which a respondent may demonstrate rights or legitimate interests in a domain name.

Although the Policy states that the complainant must prove each of the elements in paragraph 4(a), it is often observed that it is difficult for a complainant to prove a negative, i.e., that a respondent has no rights or legitimate interests in respect of a domain name. It has therefore become generally accepted under the Policy that, once a complainant has presented a clear prima facie showing of a respondent's lack of rights or legitimate interests in a domain name, the burden of submitting evidence therefore shifts to the respondent. The respondent must then by concrete evidence demonstrate its rights or legitimate interests in the domain name in order to refute the prima facie case.

The Panel finds that the Complainant has as described above made a prima facie case that the Respondent has no rights or legitimate interests and so the burden of proof has effectively been shifted to the Respondent, who did not reply to the Complainant's contentions and, therefore, has not made such showing.

Moreover, there is no evidence showing that the Respondent is commonly known as or identified by EMLYON. Furthermore, there is no evidence showing that the Respondent operates a business or any other organization under the disputed domain name.

For these reasons, and in the absence of a plausible explanation from the Respondent in connection with its rights or legitimate interests, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

According to paragraph 4(a)(iii) of the Policy, the third element that a complainant must prove is that the domain name has been registered and is being used in bad faith.

The Policy in paragraph 4(b) sets out various circumstances which may be treated by the Panel as evidence of the registration and use of a domain name in bad faith.

The Complainant has identified itself as a European Business School devoted to lifelong learning for entrepreneurial and international management.

Moreover, the Complainant has proved to the Panel's satisfaction that it owns trademark registrations containing the term EMLYON.

Moreover, the Panel has been able to ascertain, through the Complainant's website “www.em-lyon.com”, that the Complainant has been established in 1872, affiliated to the Chamber of Commerce and Industry of Lyon.

In view of the foregoing, and in the absence of a rebuttal from the Respondent, the Panel finds that the Respondent in all likelihood was aware or must have been aware of the Complainant's trademark before registering the disputed domain name <emlyon.com>, which evidences bad faith registration.

Moreover, as stated by the Complainant and in the absence of a rebuttal by the Respondent, the Panel finds that by using the disputed domain name the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website and other on-line locations, by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement, e.g., by providing links to terms related to the services offered by the Complainant.

Accordingly, the Panel finds that the disputed domain name has been registered and is being used in bad faith, and that paragraph 4(a) (iii) of the Policy is satisfied.

For these reasons, the Panel finds that the Respondent both registered and uses the disputed domain name in bad faith, and that the Complainant has therefore satisfied the third requirement of (4)(a) of the Policy.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <emlyon.com> be transferred to the Complainant.

Miguel B. O'Farrell
Sole Panelist

Dated: May 28, 2010