Generic Top Level Domain Name (gTLD) Decisions

5. Parties' Contentions

A. Complainant's Summarized Contentions

- The disputed domain names <verlia.com> and <veolix.com> are nearly identical or confusingly similar to the Complainant's trademarks. The terms "VERLIA" and "VEOLIX" are almost identical to "VEOLIA" on their visual and oral impressions. The misspelling of the names was to take bad faith advantage of spelling errors made by Internet users (Ticketmaster Corporation v. Dostan, WIPO Case No. D2002-0167; Ticketmaster Corporation v. Amjad Kausar, WIPO Case No. D2002-1018).

- The gTLD suffix .com cannot be considered as eliminating the similarity between the domain name and the trademark, as it is inherent in all commercial domain names in this gTLD (BIC Deutschland GmbH & Co KG v. Paul Tweed, WIPO Case No. D2000-0418).

- The trademark "VEOLIA" is very distinctive and thus contributes to the likelihood of confusion (Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441; VeriSign, Inc. v. Onlinemalls, WIPO Case No. D2000-1446).

- The Respondent has no rights or legitimate interests in respect of the disputed domain names.

- The Respondent's present use of the disputed domain names is not, nor is intending to be a bona fide offering of goods or services. It merely used as a link to the websites "www.domain collection.com" where domain names are offered for sale (Complaint Annex 12).

- The Respondent has not been commonly known by the domain names <verlia.com> and <veolix.com> and does not own any corresponding trademarks or service marks.

- The Respondent is using <verlia.com> and <veolix.com> domain names with the intent of commercial gain misleadingly to divert consumers, therefore, the Respondent is not using the domain names in a legitimate non-commercial or fair use.

- The Respondent's registration of the domain names with the exclusive purpose of making money constitutes bad faith, as the domain names were registered for the purpose of selling in return for consideration that exceeds Respondent's out-of-pocket expenses.

- The context of registration indicates that Respondent carried out the registration of domain names <verlia.com> and <veolix.com> without carrying out any relevant availability search.

- When the Complainant contacted the Respondent, the Respondent immediately sent a purchase agreement that included an unreasonable limitation of Respondent's future liability with respect to future registrations or sales of domain names similar to the one on offer (Complaint Annex 26).

- The Respondent is intentionally attempting to attract commercial gain, as well as Internet users to its website by creating confusion with the Complainant's trademark.

- The disputed domain names, <verlia.com> and <veolix.com>, should be transferred to the Complainant.

B. Respondent's Summarized Contentions

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

6. Discussion and Findings

The Respondent was given notice of this proceeding in accordance with the Rules. The Center discharged its responsibility under Paragraph 2(a) of the Rules to employ reasonably available means calculated to achieve actual notice to the Respondent of the Complaint.

However, as previously noted, the Respondent failed to file any reply to the Complaint and has not sought to answer the Complainant's assertions, evidence or contentions in any other manner. The Panel finds that the Respondent has been given a fair opportunity to present its case, and the Panel will proceed to a decision on the Complaint.

The Respondent's default does not automatically result in a decision in favour of the Complainant. The Complainant must still prove the elements required by the Policy. In accordance with Paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the domain name, the Complainant must prove that each of the three following elements are satisfied:

(i) disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondent has no rights or legitimate interests in respect of the domain names; and

(iii) disputed domain names have been registered and are being used in bad faith.

Pursuant to Paragraph 15(a) of the Rules the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with Paragraph 14(b) of the Rules, the Panel may draw such inferences as it considers appropriate from the Respondent's failure to reply to the Complainant's assertions and evidence or to otherwise contest the Complaint. In the circumstances, the Panel's decision is based upon the Complainant's assertions and evidence and inferences drawn from the Respondent's failure to reply.

Identical or Confusingly Similar

The Complainant has exhibited its trademark registration applications for VEOLIA (Typed Drawing) 78/296655 of September 05, 2003; VEOLIA ENVIRONNEMENT 78/267062 of June 25, 2003; VE 78/242,312 of April 25, 2003, in the United States of America; as well as registration of VEOLIA ENVIRONNEMENT 033203405 of January 9, 2003, (expiring January 08, 2013) in France. These trademarks (both as a word only and semi-figurative trademarks) are registered in many countries all over the world for international classes 1, 9, 11, 12, 35, 36, 37, 39, 40, 41 and 42.

The Respondent has not filed any reply to the Complaint or contested the Complainant's assertions. In the circumstances, the Panel finds that the Complainant has rights in trademarks VEOLIA, VEOLIA ENVIRONNEMENT, VE and others. The Respondent did not present any evidence of having rights on trade masks or trade names VERLIA or VEOLIX.

The disputed domain names, <verlia.com> and <veolix.com>, are confusingly similar to the Complainant's trademark VEOLIA.

The Complainant submits that by employing minor misspellings of the trademark, the Respondent is taking bad faith advantage of spelling errors made by Internet users when typing in "veolia."

The Panel finds that disputed domain names <verlia.com> and <veolix.com> are confusingly similar to the Complainant's registered trademark VEOLIA for the purposes of paragraph 4(a)(i) of the Policy (per VeriSign, Inc v. Onlinemalls, WIPO Case No. D2000-1446).

The confusion is also likely to occur due to the word "veolia" being very distinctive. The word "veolia" neither bears any specific meaning nor represents a commonly known or generic name. The same is true of the words "verlia" and "veolix" in the disputed domain names.

The Respondent would not have been able to demonstrate any justified connection with this name.

The Panel infers the Complainant has satisfied its burden of proof under Paragraph 4(a)(i) of the Policy.

Rights or Legitimate Interests

The Complainant contends the Respondent has no rights or legitimate interests in the disputed domain names.

Even though the Respondent has not filed any reply to the Complaint and has not contested the Complainant's assertions, it is upon the Panel to consider whether the Respondent's use of the disputed domain names demonstrates rights or legitimate interests in the domain names.

According to Paragraph 4(c) of the Policy the following circumstances, if proved, demonstrate a Respondent's rights or legitimate interests in a domain names:

(i) Respondent used or demonstrably prepared to use the domain names or corresponding names in connection with a bona fide offering of goods or services prior to notice of the dispute; or

(ii) Respondent (as an individual, business, or other organization) has been commonly known by the domain names, even if it has not acquired trademark rights; or

(iii) Respondent is making a legitimate non-commercial or fair use of the domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish the complainant's mark.

The Respondent may elect to show rights and legitimate interests, non-exhaustively, by producing proof under Paragraphs 4(c)(i-iii) of the Policy. By not responding to the Complainant's contentions the Respondent in this proceeding has never attempted to show its rights and legitimate interests.

Firstly, there is no evidence that before any notice of a dispute with the Complainant, the Respondent was using the disputed domain names for a legitimate offer of goods and services.

The Complainant points out that the disputed domain names' websites are only being used as links to other websites with offers to buy the disputed domain names. After the domain names were registered on July 7, 2003, and on July 29, 2003, the Respondent's website "www.verlia.com" and "www.veolix.com" had links to a website for registering domain names, offering to make a request for a price quote and displaying banners and advertisements (Complaint Annex 11-12).

The Panel finds no evidence that Respondent was using or is using the disputed domain name for a legitimate offering of goods and services.

Secondly, as for the Respondent's proof under Paragraph 4(c)(ii) of the Policy there is no evidence that the Respondent has been commonly known by the disputed domain name.

There is no information that the Respondent may be known under the disputed domain name as its business name or its company name. The Complainant contends the Respondent is not commonly known by the disputed domain names <verlia.com> and <veolix.com>.

The Panel does not have any grounds to believe that the Respondent may be known under the name "verlia," "veolix" or "veolia."

The Panel recalls that the Respondent registered the disputed domain names on July 7, 2003, and July 29, 2003. This was approximately three and four months after the public release of the new name Veolia Environment (VE) for Vivendi Environment. The company is known all over the world under both names and the new name attracted a lot of publicity (both as a word only and semi-figurative trademarks) for international classes 1, 9, 11, 12, 35, 36, 37, 39, 40, 41 and 42 (Complain Annex 6). (Complaint Annex 8). The Panel believes that the Respondent knew about the Complainant's trademarks and about the change of the name.

Afterwards, regarding these facts, it is in the Panel's view that the Respondent set out to register the disputed domain names since it was aware that they were valuable, moreover, the Respondent might be aware of the Complainant's trademark interests in the domain names.

Thus, the Panel does not find that the Respondent's use of the disputed domain names as links to a web page offering to buy the disputed domain names is a bona fide offering of services under Paragraph 4(c)(i) the Policy. Nor does it show any demonstrable preparations to use the disputed domain name. Rather, the Respondent essentially is using a holding pattern for the disputed domain names while waiting to see how best to exploit them for generating profit through sale of the disputed domain names.

Furthermore, the Panel draws an adverse inference from the Respondent's failure to respond to the Complaint.

The Panel finds the Complainant has carried out its burden of proof to show the Respondent has no legitimate rights or interests in the disputed domain name.

Bad Faith

Paragraph 4(b) of the Policy provides that the following circumstances are deemed to be evidence that a Respondent has registered and used a domain names in bad faith:

(i) circumstances indicating that the Respondent has registered or has acquired the domain names primarily for the purpose of selling, renting, or otherwise transferring the domain names registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain names; or

(ii) the Respondent has registered the domain names in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain names, provided that the Respondent has engaged in a pattern of such conduct; or

(iii) the Respondent has registered the domain names primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain names, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website 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 its website or location or of a product or service on its website or location.

The Complainant contends the Respondent has violated the bad faith provisions of the Policy, Paragraph 4(b)(i), because it intends to sell the disputed domain name to the Complainant (who is the owner of the trademark) for much more than Respondent's out-of-pocket costs directly related to domain name. There is sufficient evidence that this is the case.

The Complainant presented the copies of e-mail correspondence with the Respondent (or his representative) in which the proposals was made to sell the disputed domain names for the price of US$450 (Complaint Annex 15), the price far exceeding Respondent's out-of-pocket expenses.

The Respondent is in violation of the bad faith provisions of the Policy in paragraph 4(b)(i), i.e. the Respondent registered the disputed domain name with the intention of selling it for far more than it paid for it.

The Panel finds that the Respondent's bad faith in registering and using the disputed domain names is most apparent in the fact that the Respondent has held the disputed domain names while doing essentially nothing with them and has offered to sell them for a significant amount of money.

The Panel does not interpret the Policy to mean that the mere offer for sale of domain names for a substantial sum of money has to be considered an act of bad faith. Selling of domain names is prohibited by the Policy if the other elements of Paragraph 4(a) of the Policy are also violated, i.e. that the domain name "has been registered and is being used in bad faith."

According to the widely cited case Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003: "the requirement in paragraph 4(a)(iii) that the domain name "has been registered and is being used in bad faith" will be satisfied only if the Complainant proves that the registration was undertaken in bad faith and that the circumstances of the case are such that Respondent is continuing to act in bad faith."

The Panel finds that the Respondent "has registered the disputed domain names in bad faith." The Respondent does not conduct any legitimate business activity using the disputed domain names. Given the Complainant's numerous trademark registrations for, and its wide reputation in, the word "veolia," it is not possible to conceive of a circumstance in which the Respondent could legitimately use the domain names <verlia.com> and <veolix.com>. It is also not possible to conceive a situation, in which the Respondent would have been unaware of this fact at the time of registration. These findings, together with the finding that the Respondent has no rights or interests in the domain names, lead the Panel to conclude that the domain names <verlia.com> and <veolix.com> have been registered by the Respondent in bad faith.

The Panel finds that the disputed domain names "are being used in bad faith" by the Respondent. The domain names <verlia.com> and <veolix.com> do not resolve to a website or other on-line presence. The web page offering to make requests of sale of the domain names does not give any evidence that a website or other on-line presence is in the process of being established, which will use the domain names. There is no evidence of advertising, promotion or display to the public of the domain names.

The Panel recall several WIPO decisions against a respondent known as Cambridge with an address identical to the Respondent's address in this case; Doux S. A. v. Cambridge (WIPO Case No DBIZ2002-00272), Nokia Corporation v. Cambridge (WIPO Case No. DBIZ2002-00053), Audi AG v. Cambridge (WIPO Case No. DBIZ2002-00046), Aware, Inc. v. Cambridge (WIPO Case No DBIZ2002-00014) when Cambridge as the Respondent failed to submit the response and the panel found out that it acted in bad faith. Furthermore, there was a similar WIPO case against Cambridge Capital Investment Ltd. and Newcastle FORSALE at Domain Collection.com (Caloi Norte S/A v. Cambridge Capital Investment Ltd. and Newcastle FORSALE at Domain Collection WIPO Case No. D2001-1395). The Panel is this case finds ground to believe that the Respondent CAMBRIDGE CAPITAL INVESTMENT, LTD. is the same company or closely connected to company Cambridge which was found many times being involved in business of registering and using domain name in bad faith. The Panel considers these facts to give sufficient evidence that the Respondent is involved in continuous cybersquatting activity.

The Panel finds the Complainant has shown the Respondent registered and is using the disputed domain names in bad faith.

7. Decision

The Administrative Panel decides that the Complainant has proven each of the three elements in Paragraph 4(a) of the Policy. In accordance with Paragraph 4(i) of the Policy and Paragraph 15 of the Rules, the Panel orders that the disputed domain names, <verlia.com> and <veolix.com>, be transferred to the Complainant.