The Complainant is Fonciere Altarea, France, represented by Casalonga Avocats, France.
The Respondent is Registration Private, Domains By Proxy, LLC, United States of America / Dana Lucas, United States of America.
The disputed domain name <familyvilliage.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 25, 2020. On March 25, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 27, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 30, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on the same day.
The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 1, 2020. In accordance with the Rules, paragraph 5, the due date for Response was April 21, 2020. On April 1, 2020, the Center received an email communication from the Respondent. Further to the latter email, the Complainant requested suspension of the proceeding on April 6, 2020, according to which the Center suspended the proceeding until May 6, 2020. On May 5, 2020, the Complainant requested reinstitution of the proceeding. The Center reinstituted the proceeding on May 7, 2020 and extended the Response due date to May 22, 2020. However, the Respondent did not submit any formal response. Accordingly, the Center notified to the Parties that it was proceeding to panel appointment on May 25, 2020.
The Center appointed Adam Taylor as the sole panelist in this matter on June 2, 2020. 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.
Since the early 2000s, the Complainant, which is part of the Altarea property development group, has operated a series of shopping centres in France called “Family Village”.
The Complainant’s main website is at “www.familyvillage.com”.
The Complainant owns European Union Trade Mark No. 3595361 for FAMILY VILLAGE, filed December 24, 2003, registered June 29, 2005, in classes 35, 36, 37, 38, and 31.
The disputed domain name was registered on April 2, 2019.
The disputed domain name was used for a GoDaddy parking page with pay per click (“PPC”) links relating to apartment and hotel room rentals, amongst other things.
On August 13, 2019, the Complainant sent a cease and desist letter to the Respondent, following which the website at the disputed domain name was removed. The Respondent did not respond to the Complainant’s letter or to reminders sent on August 27, 2019, and September 9, 2019.
The following is a summary of the Complainant’s contentions:
The disputed domain name is confusingly similar to the Complainant’s trade mark. The two are visually close and phonetically identical. The only difference is the addition of the letter “i”, which amounts to typosquatting.
The Respondent lacks rights or legitimate interests in the disputed domain name.
The Complainant has not authorised the Respondent to register a domain name incorporating its trade mark.
The Respondent is not connected with the Complainant in any way.
The Respondent is not, and has never been, known by the name “Family Village”.
The disputed domain name was registered and is being used in bad faith.
The Respondent must have known of the Complainant’s trade marks when it registered the disputed domain name, as it used the disputed domain name for a parking page with links to apartment and hotel room rentals, which is one of the main activities of the Complainant. Also, the Complainant’s trade marks have acquired a substantial reputation worldwide.
The Respondent included the Complainant’s trade mark in the disputed domain name plus the letter “i” in order to attract Internet users who mistyped the Complainant’s name to the Respondent’s parking page with links relating to the Complainant’s activities. The Respondent deliberately attempted to disrupt the Complainant’s business and to create a likelihood of confusion with the Complainant’s trade marks for its own commercial gain.
The fact that the Respondent immediately stopped its activity on receipt of the Complainant’s letter is further evidence of bad faith.
The Respondent did not reply to the Complainant’s contentions. However, the Respondent did send an informal email communication to the Center on April 1, 2020, indicating that it did not intend to renew the registration of the disputed domain name.
Under the Policy, the Complainant is required to prove on the balance of probabilities that:
- the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights;
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name has been registered and is being used in bad faith.
The Complainant has established rights in the mark FAMILY VILLAGE by virtue of its registered trade marks as well as unregistered trade mark rights deriving from the extensive use of that name.
Section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) makes clear that a domain name which consists of a common, obvious, or intentional misspelling of a trade mark is considered by UDRP panels to be confusingly similar to the relevant mark for purposes of the first element. The Panel considers that the disputed domain name is an obvious misspelling of the Complainant’s trade mark as it adds an extra letter “i” but is otherwise identical to the Complainant’s trade mark.
Accordingly, the Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trade mark.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy.
As explained in section 2.1 of WIPO Overview 3.0 , the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element.
Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark.
Paragraph 4(c) of the Policy gives examples of circumstances which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests in the disputed domain name.
As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name to intentionally attempt to attract, confuse, and profit from Internet users seeking the Complainant’s products and services. Such use of the disputed domain name could not be said to be bona fide.
Nor is there any evidence that paragraphs 4(c)(ii) or (iii) of the Policy apply in the circumstances of this case.
The Panel finds that the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests and there is no rebuttal by the Respondent.
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy.
The Panel has little difficulty in concluding that the disputed domain name has been registered and is being used in bad faith.
By using the disputed domain name, comprising a typosquatting variation of the Complainant’s trade mark, in connection with a parking page with links to products relating to the Complainant’s industry, the Respondent has intentionally attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with the Complainant’s trade mark.
Section 3.5 of WIPO Overview 3.0 makes clear that neither the fact that such links are generated by a third party such as a registrar, nor the fact that the respondent itself may not have directly profited, would not by themselves prevent a finding of bad faith.
It is also relevant that the Respondent removed the parking page following the Complainant’s cease and desist letter but did not respond to that letter or file a Response in this case to deny the Complainant’s assertions of bad faith, let alone to put forward any legitimate reason for registering and used the disputed domain name.
The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the Policy.
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 <familyvilliage.com> be transferred to the Complainant.
Date: June 16, 2020
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