WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Altarea v. Loretta Zayas

Case No. D2020-2337

1. The Parties

The Complainant is Altarea, France, represented by Casalonga Avocats, France.

The Respondent is Loretta Zayas, United States of America.

2. The Domain Name and Registrar

The disputed domain name <altaraecogedim.com> (“Disputed Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 9, 2020. On September 9, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 10, 2020, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 22, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 12, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 20, 2020.

The Center appointed Manuel Moreno-Torres as the sole panelist in this matter on October 30, 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.

4. Factual Background

The Complainant is a French real estate developer and investor firm established in 1994. As such, the Complainant had one of the largest portfolio of real estate developments in France in 2019.

The Complainant holds the following trademark registrations:

European Union trademark registration ALTAREA COGEDIM No. 009196825 filed on June 8, 2010 and registered on December 17, 2010 for services in classes 35, 36, 37, 41, 42 and 43;

International trademark registration ALTAREA COGEDIM No. 1047615 designating the European Union, Switzerland, Monaco, the Russian Federation, Ukraine registered on June 8, 2010 for services in classes 35, 36, 37, 41 and 43.

The Complainant has strong presence online by using different domain names such as, <altarea.com> registered on March 31, 1999 or, <altareacogedim.com> registered on June 17, 2009.

The Respondent did not reply the cease and desist letter sent by the Complainant on May 18, 2020.

The Disputed Domain Name was registered on December 5, 2020 and resolves to an inactive page.

5. Parties’ Contentions

A. Complainant

The Disputed Domain Name <altaraecogedim.com> is confusingly similar to the ALTAREA COGEDIM trademark registrations. The only difference between the Disputed Domain Name and the Complainant’s ALTAREA COGEDIM trademark is for the inversion of the letter “e” and “a” in the term “altarea”. As such, the Complainant asserts to be a clear typosquatting case.

With respect to the second element, the Complainant contends that the Respondent is not an affiliated nor has it been authorized to distribute or permitted to use ALTAREA COGEDIM in a corresponding domain name. Accordingly to a trademark search before the United States Patent and Trademark Office (“USPTO”), the Complainant alleges that the Respondent is not commonly known by the Disputed Domain Name or trademark. Further, the Disputed Domain Name does not include the Respondent’s name, Loretta Zayas, or any other name otherwise commonly used to identify the Respondent. Neither Loretta Zayas arises as owner of any trademark in connection to the Disputed Domain Name.

The Complainant also contends that the Disputed Domain Name resolves to an inactive page.

With regard to the third element, the Respondent had prior knowledge of the Complainant’s trademarks and registered the Disputed Domain Name, in order to identify and target the Complainant and to take unfair advantage from the Complainant’s trademarks reputation.

The Respondent is attempting to disrupt the Complainant’s business, which clearly demonstrate the bad faith of the Respondent in registering and using the Disputed Domain Name.

The Complainant contends that the typosquatting practice in the field of domain names is fraudulent, as other panels have accepted. Besides, the mere absence of right or legitimate interest in the Disputed Domain Name evidences bad faith registration.

The Complainant alleges that while the Disputed Domain Name is inactive, Internet users may considerer the Complainant’s official website inaccessible this constitutes a disruption of the Complainant’s business

Finally, the Complainant affirms that the lack of response of the Respondent to the cease and desist letters is further evidence of bad faith.

B. Respondent

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

6. Discussion and Findings

Under paragraph 4(a) of the Policy, to succeed the complainant must satisfy the Panel that:

(i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and

(iii) the Disputed Domain Name was registered and is being used in bad faith.

There are no exceptional circumstances within paragraph 5(e) of the Rules to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a response. Under paragraph 14(a) of the Rules in the event of such a “default” the Panel is still required “to proceed with a decision on the complaint”, whilst under paragraph 14(b) it “shall draw such inferences there from as it considers appropriate”. This UDRP procedure is accepted by the domain name registrant as a condition of registration.

The Panel will also take into consideration the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).

A. Identical or Confusingly Similar

The Complainant has shown trademarks rights for the purpose of the first requirement on ALTAREA COGEDIM. In accordance with section 1.9 of the WIPO Overview 3.0 “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”.

Accordingly, the Panel finds that on the balance of probabilities this is an intentional misspelling of the Complainant’s trademark. Indeed, the mere inversion of the vowel “e” with “a” at the end of the first term “altarea”, resulting “altarae”, and the full reproduction of rest of trademark in the Disputed Domain Name support such a finding. Therefore, the Disputed Domain Name is confusingly similar to the ALTAREA COGEDIM trademark.

It is well established that generic Top-Level Domains (“gTLDs”), in this case “.com”, are typically irrelevant to the consideration of identity or confusing similarity between a trademark and a domain name.

To the satisfaction of the Panel the first requirement is met under paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests. Such an inferenced is based on the evidence produced by the Complainant to show that there is no relationship between the Parties, that the Complainant has not authorized or otherwise permitted the Respondent to register its trademark as a domain name and that the Respondent has not been commonly known by the Disputed Domain Name.

The Panel also notes the lack of response of the Respondent to the cease and desist letter and the lack of response of the Respondent to the Complaint in this proceeding and the lack of use of the Disputed Domain Name in a corresponding website.

In accordance with section 2.1 of the WIPO Overview 3.0 “...where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”.

Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

For the purposes of the Policy, a complainant must establish that the disputed domain name was registered and used in bad faith by the respondent.

The Panel underlines that the Complainant’s trademark has been in used for years and that the Complainant is a key real estate developer and investor in France with business in Italy and Spain. The Panel has carried out a Google search of the ALTAREA COGEDIM trademark.

Under these circumstances, the Panel finds that the registration of the Disputed Domain Name gives rise to an attempt to target the Complainant and its trademarks. Accordingly, and also considering the composition of the Disputed Domain Name, it seems more likely than not that the Respondent knew of the Complainant when it registered the Disputed Domain Name.

As noted in the WIPO Overview 3.0, section 3.3, from the inception of the UDRP, panelists have found that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. In such a situation, it is appropriate to look at the totally of the circumstances of the case. Here, the facts alleged in the Complaint, the Complainant’s mark reputation, the lack of the Respondent’s rights or legitimate interests, and the lack of response from the Respondent to the Complainant’s cease-and-desist letter and to the Complaint, support a finding of bad faith registration and use.

Consequently, the Panel finds that the Disputed Domain Name was registered and 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 <altaraecogedim.com> be transferred to the Complainant.

Manuel Moreno-Torres
Sole Panelist
Date: November 13, 2020