URS DEFAULT DETERMINATION


ZV HOLDING v. See PrivacyGuardian.org
Claim Number: FA1904001837707


DOMAIN NAME

<zadigvoltaires.online>


PARTIES


   Complainant: ZV HOLDING of Paris, France
  
Complainant Representative: Nameshield Enora Millocheau of Angers, France

   Respondent: See PrivacyGuardian.org See PrivacyGuardian.org of Phoenix, AZ, US
  

REGISTRIES and REGISTRARS


   Registries: DotOnline Inc.
   Registrars: NameSilo, 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: April 8, 2019
   Commencement: April 8, 2019
   Default Date: April 23, 2019
   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 <zadigvoltaires.online>. 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 <zadigvoltaires.online>. No domain name is dismissed from this Complaint.

   Findings of Fact: The case of the Complainant is as follows: The domain name is confusingly similar to the International trademark ZADIG & VOLTAIRE® n° 907298 registered on 2006-09-15. The brand is actively used for clothing on its official website (www.zadig-et-voltaire.com). The disputed domain name incorporates the Complainant�s trademark, without the �&� meaning �AND� and with the mere addition of the letter �S�. It doesn�t eliminate the likelihood of confusion with the trademark. The addition of the new GLTD �online� worsens the likelihood of confusion, as Internet users may believe that it is one of the Complainant official presence online. The omission of ampersands is disregarded under a Policy ¶ 4(a)(i) analysis. A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.�). The Respondent has no rights or interests in respect of the domain name and is not related to the Complainant�s business. Neither licence nor authorization has been granted to the Respondent to make any use of the Complainant�s trademark ZADIG & VOLTAIRE®, or apply for registration of the disputed domain name by the Complainant. The Respondent hosts a website intended to look and feel like an official website, displaying Complainant�s mark, without any disclaimer, to mislead consumers into believing that some sort of affiliation exists between the Respondent and the Complainant. The Complainant contends that the Respondent intends to pass off as the Complainant for commercial gain, which is evidence of a lack of rights and legitimate interest in the domain name. The domain name is confusingly similar to the well­known International trademark ZADIG & VOLTAIRE®, which is reproduced on the website, without the Complainant�s authorization. Thus, the Respondent was aware of the Complainant�s trademark ZADIG & VOLTAIRE ® at the moment of registration of the disputed domain name, and decided voluntarily to create a likelihood of confusion by suggesting he is related to the Complainant.

  

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:
  (i) for which the Complainant holds a valid national or regional registration and that is in current use; or
  (ii) that has been validated through court proceedings; or
  (iii) that is specifically protected by a statute or treaty in effect at the time the URS complaint is filed.

Determined: Finding for Complainant 


The Complainant has proved by documentary evidences that they are the registered owner of international trademark �ZADIG & VOLTAIRE� since 2006. As noted, the disputed domain name <zadigvoltaires.online> composes �ZADIGVOLTAIRE� (without �&� ampersands and addition of the letter �S�) and �.online�. The plea that the ampersands are prohibited characters in domain name is not disputed. The other distinction between the disputed domain name and registered trademark �ZADIG & VOLTAIRE� is the addition of the letter �S� in the disputed domain name. The use of the letter �S� as a suffix is not sufficient to distinguish the disputed domain name from the complainant�s registered trademark. Thus, the word �ZADIG & VOLTAIRE� in disputed domain name is identical to Complainant�s registered trademark �ZADIG & VOLTAIRE�. The �.online� 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 �ZADIG & VOLTAIRE� 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 trademark �ZADIG & VOLTAIRE� under various classifications. The Complainant�s adoption and first use of the registered trademark since 2006. 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.
  a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
  b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
  c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
  d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant's 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 Registrant's web site or location or of a product or service on that web site or location.

Determined: Finding for Complainant 


The Respondent is not affiliated with Complainant in any manner and never authorized the Respondent to register or use any domain name incorporating �ZADIG & VOLTAIRE�. 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 �ZADIG & VOLTAIRE� 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 �ZADIG & VOLTAIRE� 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:


  1. The Complaint was neither abusive nor contained material falsehoods. 

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:

  1. zadigvoltaires.online

 

Saravanan Dhandapani
Examiner
Dated: April 24, 2019

 

 

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