URS DEFAULT DETERMINATION
SENEK v. CATHERINE ESCANDE
Claim Number: FA1606001680520
DOMAIN NAME
<kinougarde.site>
PARTIES
| Complainant: SENEK of PARIS, France | |
|
Complainant Representative: Nameshield
Laurent Becker of Angers, France
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| Respondent: CATHERINE ESCANDE of CHEVIRE LE ROUGE, FR-R, II, FR | |
REGISTRIES and REGISTRARS
| Registries: DotSite Inc. | |
| Registrars: Network Solutions LLC |
EXAMINER
| The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Examiner in this proceeding. | |
| Saravanan Dhandapani, as Examiner |
PROCEDURAL HISTORY
| Complainant Submitted: June 22, 2016 | |
| Commencement: June 22, 2016 | |
| Default Date: July 7, 2016 | |
| Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules"). |
RELIEF SOUGHT
| Complainant requests that the domain name be suspended for the life of the registration. |
STANDARD OF REVIEW
| Clear and convincing evidence. |
FINDINGS and DISCUSSION
| Procedural Findings: | ||
| Multiple Complainants: Multiple Complainants: No multiple Complainants are involved in this proceeding. This Complaint and findings relate to the domain name <kinougarde.site>. No domain name is dismissed from this Complaint. | ||
| Multiple Respondents: Multiple Respondents: No multiple Respondents are involved in this proceeding. This Complaint and findings relate to the domain name <kinougarde.site>. No domain name is dismissed from this Complaint. | ||
| Findings of Fact: The case of the Complainant is as follows: The domain name is identical to the distinctive French trademark "KINOUGARDE" n° 3722472, registered on March 18th, 2010. This trademark is also registered in the TMCH since February 10th, 2014. The addition of the new gTLD ".SITE" is not sufficient to escape the finding that the domain name is identical to the Complainant's trademark “KINOUGARDE”. The addition of generic wording to a trademark in a domain name is normally insufficient to avoid a finding of confusing similarity and that panels have usually found the incorporated trademark to constitute the dominant component of the disputed domain name. See WIPO D2014-1590 Fiskars Corporation v. James Taverner. The Respondent has no rights or interests in respect of the domain name and is not related to the Complainant’s business. The Complainant doesn’t carry out any activity or business with the Respondent. Furthermore, the website in relation with the disputed domain name points to a website in French about the pet keeping. The Complainant is known in France as professional in Home Services (Babysitting, cleaning...): See www.kinougarde.com. The Complainant contends that the Respondent used the notoriety of the trademark in France to attract the internet users to its website. The Respondent was aware of the Complainant’s trademark “KINOUGARDE” at the moment of registration of the disputed domain name. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location. |
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Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
[URS 1.2.6.1] The registered domain name(s) is/are identical or confusingly similar
to a word mark: Determined: Finding for Complainant The Complainant has proved by documentary evidences that they are the registered owner of trademark “kinougarde” under various classifications. As noted, the disputed domain name <kinougarde.site> composes “kinougarde” and “.site”. Thus the word “kinougarde” in disputed domain name is identical to Complainant’s registered trademark “kinougarde”. The “.site” in disputed domain name is a generic code top-level domain name (gTLD) suffix. It is non-distinctive and is incapable of differentiating the disputed domain name from the Complainant’s registered trademark. Based on the “kinougarde” being a registered trademark of the Complainant, the Examiner determines that URS 1.2.6.1(i) covers the domain name at issue in this Complaint. [URS 1.2.6.2] Registrant has no legitimate right or interest to the domain name. Determined: Finding for Complainant The Complainant owns registered trademark “kinougarde” under various classifications. In such case, the burden lies on the Respondent to prove that he/she has legitimate rights and/or interests in the disputed domain name. The Respondent is in default and has not filed any response. Although, the Complainant is not entitled to relief simply by default of the Respondent to submit a Response, the Examiner can however and does draw evidentiary inferences from the failure of the Respondent to respond. In view of the above, the Complainant has established a prima facie case of lack of rights and legitimate interest. Based on the record, the Respondent does not have rights or legitimate interests in the disputed domain name. Hence, the Examiner determines that URS 1.2.6.2 covers the domain name at issue in this Complaint and that the Respondent has no legitimate right or interest to the domain name.
[URS 1.2.6.3] The domain name(s) was/were registered and is being used in bad faith.
Determined: Finding for Complainant It is the specific case of the Complainant that the Respondent is not affiliated with Complainant in any manner and never authorized the Respondent to register or use any domain name incorporating “kinougarde”. The Respondent has not responded in spite of the notice of complaint and notice of default under this URS determination process. It is well established that the registration and use of the disputed domain name must involve malafides where the registration and use of it was continues to be made in full knowledge of the Complainant’s prior rights in the “kinougarde” registered trademark and in circumstances where the registrant did not seek permission from the Complainant, as the owner of trademark, for such registration and use. Thus the Panel Examiner comes to irresistible determination that (i) the disputed domain name is identical to the Complainant’s “kinougarde” trademark; (ii) the Respondent’s name does not correspond to the disputed domain name; (iii) the Respondent was aware of the Complainant and its trademark when it registered the disputed the domain name; (iv) there is no indication of any authorization to use the Complainant’s mark. Hence, it is lawful to conclude that the disputed domain name was registered in bad faith. Thus the Examiner determines that URS 1.2.6.3 (a) and (d) covers the domain name at issue in this Complaint and the domain name was registered and is being used in bad faith. FINDING OF ABUSE or MATERIAL FALSEHOOD The Examiner may find that the Complaint was brought in an abuse of this proceeding or that it contained material falsehoods. The Examiner finds as follows:
DETERMINATION
After reviewing the parties’ submissions, the Examiner determines that the Complainant
has demonstrated all three elements of the URS by a standard of clear and convincing
evidence; the Examiner hereby Orders the following domain name(s) be SUSPENDED for
the duration of the registration:
|
Saravanan Dhandapani Examiner
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