WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Compagnie Générale des Etablissements Michelin v. Sanal Alan
Case No. D2015-0594
1. The Parties
The Complainant is Compagnie Générale des Etablissements Michelin of Clermont-Ferrand, France, represented by Dreyfus & associés, France.
The Respondent is Sanal Alan of Istanbul, Turkey.
2. The Domain Name and Registrar
The disputed domain name <michelinankara.com> (“Disputed Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 3, 2015. On April 7, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On the same day, the Registrar 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 10, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 30, 2015.
On April 20, 2015, the Center received an email communication from a Mr. Yaprak claiming the Disputed Domain Name was not in use. On the same day, the Center acknowledged receipt of this email communication and requested him to clarify his relation with the registrant on record. The Center received a reply from Mr. Yaprak claiming “sanalalan.net and michelinankara.com my domain. I can give you the domain name. michelinankara.com domain name is not used and idle waiting. Will not be renewed when it expires. michelinankara.com creation jan 2014. But was not used and will be used. Will not renew for 2016”.
In light of the above, the Center invited the Complainant to comment if it would like to suspend the proceedings for the purpose of possible settlement with the Respondent on April 20, 2015. Upon the request of the Complainant, the proceedings were formally suspended on April 22, 2015. Upon the further request of the Complainant, the proceedings were reinstituted on May 18, 2015, with a new Response due date as of May 26, 2015.
On May 27, 2015, the Center informed the parties that it would proceed with panel appointment shortly.
The Center appointed William P. Knight as the sole panelist in this matter on June 1, 2015. 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 general background to the Complainant’s business, and the global reputation of the Complainant in the trademark MICHELIN, has been explained at length in previous UDRP panel decisions. See Compagnie Générale des Etablissements Michelin v. Alex Moore,WIPO Case No. D2014-0048 ; Compagnie Générale des Etablissements Michelin v. Triara.com, S.A. de C.V.,
WIPO Case No. D2013-1788; Compagnie Générale des Etablissements Michelin v. Fundacion Private Whois,WIPO Case No. D2013-1573; Compagnie Générale des Etablissements Michelin (Michelin) v. Zhichao Yang,WIPO Case No. D2013-1418; Compagnie Générale des Etablissements Michelin (Michelin) v. Todoneumatico Online S L,WIPO Case No. D2013-1383; Compagnie Générale des Etablissements Michelin v. Llantas Supremas S.A.,
WIPO Case No. D2013-1211; Compagnie Générale des Etablissements Michelin v. Transure Enterprise Ltd, Host Master / Above.com Domain Privacy,WIPO Case No. D2012-0045; Compagnie Générale des Etablissements Michelin v. Vyacheslav Nechaev,WIPO Case No. D2012-0384; Compagnie Générale des Etablissements Michelin v. Milan Kovac / Privacy--Protect.org,WIPO Case No. D2012-0634; Compagnie Générale des Etablissements Michelin v. Above.com Domain Privacy and Transure Enterprise Ltd,
WIPO Case No. D2013-0226; Compagnie Générale des Etablissements Michelin v. PrivacyProtect.org / Kim Bum,WIPO Case No. D2013-0181; Compagnie Générale des Etablissements Michelin v. Above.com Domain Privacy / Transure Enterprise Ltd.,WIPO Case No. D2013-0357 ; Compagnie Générale des Etablissements Michelin v. Above.com Domain Privacy / Transure Enterprise Ltd.,
WIPO Case No. D2012-1825.
The Complainant is the owner of numerous registered trademarks being MICHELIN or incorporating MICHELIN in many countries in the world, including Turkey (since 1952). The Complainant’s business in Turkey under the trademark MICHELIN has been conducted through the affiliated entity Michelin Tire Trading Co. since at least 1996.
The Disputed Domain Name was registered in the name of the Respondent on January 14, 2014. Soon after that date, the Wayback Machine shows that the Disputed Domain Name was used for a time to advertise the business of a company called Çiftçi Ticaret (“Farmer Trade” in Turkish) in respect of the wholesaling and retailing of a range of tyres, including those of the Complainant and those of its competitors, (the business being referred to as Çiftçi Oto Lastik, or “Farmers Tyre”). There was no apparent disclaimer on that website of authorization by the Complainant. The Disputed Domain Name has, however, been inactive since at least March 10, 2015. (The Panel may undertake, limited factual research into matters of public record, including consulting a repository such as the Internet Archive; see WIPO Overview of WIPO Panel Vies on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 4.5.)
5. Parties’ Contentions
A. Complainant
In accordance with paragraph 4(a) of the Policy, the Complainant asserts:
(i) that the Disputed Domain Name is confusingly similar to its trademark MICHELIN;
(ii) that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name;
(iii) that the Disputed Domain Name has been registered and is being used in bad faith.
The Complainant asserts that the addition to the Disputed Domain Name of the word “ankara” does nothing to distinguish the dominant element of the Disputed Domain Name, being the word “michelin”.
The Complainant asserts that, considering the Respondent’s failure to use, or to make demonstrable preparations to use, the Disputed Domain Name for a discernible purpose, the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name. The Complainant further asserts that its attorneys wrote to the Respondent by letter dated August 6, 2014 and followed up with a number of emails to which no reply was received.
The Complainant asserts that, considering its considerable business under the trademark MICHELIN in Turkey and overseas, the registration of the Disputed Domain Name by the Respondent without the consent of the Complainant must have been with knowledge of the Complainant’s pre-existing rights in the trademark MICHELIN and hence in bad faith. The Complainant alleges that the registered contact details of the Respondent appear to be incorrect, including the Respondent’s name and physical address and argues, this also is an indication of registration and use in bad faith, in the sense required by the Policy.
B. Respondent
The Respondent did not reply to the Complainant’s contentions in accordance with the UDRP. The Respondent did, however, admit in an email to the Center that the Disputed Domain Name has never been used.
6. Discussion and Findings
A. Identical or Confusingly Similar
Considering the first element of paragraph 4(a) of the Policy, the Panel notes that the determination of confusing similarity is a factual one which must be satisfied by making a side-by-side comparison of the Complainant’s trademark and the Disputed Domain Name, taking into account the degree of aural, visual, or conceptual similarity between the two, the similarity of the goods and services for which they are used and the inherent or acquired distinctiveness of the trademark, as well as issues relevant to language; Tchibo Frisch-Röst-Kaffee GmbH v. Hans Reischl,
WIPO Case No. D2001-0079.
On a side-by-side comparison, the similarity of the trademark MICHELIN and the Disputed Domain Name is evident. The addition of the word “Ankara”, in reference to the capital of Turkey, does little to distinguish the Disputed Domain Name from the Complainant’s trademark MICHELIN.
The Panel therefore finds that the Disputed Domain Name is confusingly similar to the Complainant’s well-known trademark MICHELIN.
B. Rights or Legitimate Interests
Considering the Respondent’s failure to account for his selection of the Disputed Domain Name, combined with the Respondent’s failure to use the Disputed Domain Name except for the advertising of the wholesale and retail of tyres, including the tyres of the Respondent’s competitors, and thereafter for no discernible purpose, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; see WIPO Overview 2.0, paragraph 2.3.
C. Registration and Use in Bad Faith
Paragraph 4(b) of the Policy provides a non-exclusive list of circumstances which may indicate registration and use in bad faith. These include paragraph 4(b)(iv) of the Policy which states that registration and use in bad faith may be demonstrated “by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [his] 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 Respondent’s] web site or location or of a product or service on [the Respondent’s] web site or location.”
It is clear from the Respondent’s initial use of the Disputed Domain Name that this is what the Respondent has done. Guidance is also provided in such a case by paragraph 3.5 of WIPO Overview 2.0 which states that “[t]he existence of a disclaimer cannot by itself cure bad faith, when bad faith has been established by other factors. This is typically explained by UDRP panels with reference to the probability of Internet user ‘initial interest confusion’ - by the time such user reaches and reads any disclaimer under the domain name, any registrant objective of attracting visitors for financial advantage to its website through use of the trademark in the domain name will generally have been achieved. A disclaimer can also show that the respondent had prior knowledge of the complainant’s trademark.”
A number of UDRP panel decisions provide guidance as to the circumstances other than those listed in paragraph 4(b) of the Policy which may indicate registration and use in bad faith; Telstra Corporation Limited v. Nuclear Marshmallows,
WIPO Case No. D2000-0003; Telstra Corporation Limited v. Barry Cheng Kwok Chu, WIPO Case No. D2000-0423; Club Méditerranée S.A. v. Clubmedical,
WIPO Case No. D2000-1428; Time Inc. v Chip Cooper,
WIPO Case No. D2000-1342.
In the Nuclear Marshmallows decision referred to above, and cited by the Complainant, the panel found bad faith in circumstances where:
“(i) the Complainant’s trademark has a strong reputation and is widely known, as evidenced by its substantial use in Australia and in other countries,
(ii) the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the domain name,
(iii) the Respondent has taken active steps to conceal its true identity, by operating under a name that is not a registered business name,
(iv) the Respondent has actively provided, and failed to correct, false contact details, in breach of its registration agreement, and
(v) taking into account all of the above, it is not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate, such as by being a passing off, an infringement of consumer protection legislation, or an infringement of the Complainant’s rights under trademark law.”
Considering the Respondent’s failure to account for his selection of the Disputed Domain Name, combined with the Respondent’s imputed knowledge of the Complainant’s pre-existing rights in the well-known trademark MICHELIN, and the use made of the Disputed Domain Name for a period of time before such use ceased, the Panel is prepared to conclude, on the balance of probabilities, that the Disputed Domain Name was registered in bad faith.
Considering the Respondent’s failure to account for his selection of the Disputed Domain Name, combined with the Respondent’s apparent failure to provide correct contact details, the Panel is also prepared to conclude, on balance, that the Disputed Domain Name is being used in bad faith.
7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name <michelinankara.com> be transferred to the Complainant.
William P. Knight
Sole Panelist
Date: June 5, 2015
