WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Veolia Environnement v. Cambridge Capital Investment Ltd.
Case No. D2004-0104
1.
The Parties
The Complainant is Veolia Environnement, Paris, France, represented by
Maître Arnaud Michel, Cabinet Gide Loyrette Nouel, Paris, France.
The Respondent is CAMBRIDGE CAPITAL INVESTMENT, LTD of Miami, Florida,
United States of America.
2.
The Domain Names and Registrar
The domain names in dispute are <verlia.com> and <veolix.com>.
The Registrar for the disputed domain name is iHoldings.com Inc.,
d.b.a. DotRegistrar.com.
3.
Procedural History
The Complainant filed the Complaint with the WIPO Arbitration and Mediation Center
(the “Center”) on February 9, 2004, against Domain Collection. On February 11, 2004,
the Center transmitted by email to iHoldings.com Inc. a request for registrar
verification in connection with the domain name in dispute. On February 11, 2004, the
Registrar transmitted by email to the Center its response stating that the Registrant of
the disputed domain name was CAMBRIDGE CAPITAL INVESTMENT, LTD. FOR
SALE at DomainCollection.com and that the Registrar has not received a copy of the
Complaint. The Registrar further confirmed that the Uniform Domain Name Dispute
Resolution Policy was applicable to the domain names <verlia.com> and
<veolix.com>.
On February 13, 2004, the Complainant forwarded a copy of the Complaint to
iHoldings.com Inc, d/b/a DotRegistar.com. On February 17-18, 2004, a clarification of
the Registrar followed, with explanation that CAMBRIDGE CAPITAL INVESTMENT
was the true Registrant, while the name of Domain Collection (that was the Respondent
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originally indicated by the Complainant) being a comment submitted by the Registrant
in the optional field beard no relevance on the identity of the Registrant.
The Center forwarded a Complaint Deficiency Notification as to the identity of the
Respondent to the Complainant on February 24, 2004. The Complainant filed an
Amendment to the Complaint on February 26, 2004.
On February 27, 2004, the Center verified that the Amended Complaint satisfied the
formal requirements of the Uniform Domain Name Dispute Resolution Policy
(the “Policy”), 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 Paragraphs 2(a) and 4(a) of the Rules, the Center formally notified
the Respondent of the Complaint by e-mail and courier at the addresses showed in the
domain names data in Registrar’s Whois database, and the proceedings commenced on
February 27, 2004. In accordance with the Paragraph 5(a) of the Rules the due date for
Response was March 18, 2004. The Respondent did not submit any response.
Accordingly, the Center notified the Respondent’s default on March 23, 2004.
The Center appointed Irina V. Savelieva as the Sole Panelist in this matter on
April 1, 2004. 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 Paragraph 7 of the
Rules.
4.
Factual Background
The Complainant, Veolia Environnement (formerly known as Vivendi Environnement)
is a leading company in environmental services with operations worldwide. The four
business sectors, in which tailored solutions are provided, are: water management,
waste management, energy management and passenger transport management.
The 2002 revenue of Veolia Environnement was €13,3 billion.
The North American part of Veolia Environnement generates a revenue of €3,4 billion
and manages 25,700 employees.
The Complainant holds VEOLIA trademark, as well as numerous variations of it:
VEOLIA ENVIRONMENT, VEOLIA WATER, VEOLIA WATER SYSTEMS and
others. These trademarks are registered worldwide (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).
The Complainant has its own website “www.veoliaenvironment.com” (Complaint
Annex 4).
The Complainant has numerous applications for trademarks, including those in
United States of America: VEOLIA (Typed Drawing) 78/296655 of
September 5, 2003; VEOLIA ENVIRONNEMENT 78/267062 of June 25, 2003; VE
78/242,312 of April 25, 2003.
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The trademark VEOLIA has been used extensively by the Complainant, as well as
being part of the new company name, which led to the name being well known
internationally, including the United Sates of America.
The Respondent registered the disputed domain names, <verlia.com> on July 7, 2003,
and <veolix.com> on July 29, 2003, approximately three and four months after the
public were made aware of the new name for the Complainant.
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.
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B.
-
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.
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
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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.
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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.
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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
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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
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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.
Irina V. Savelieva
Sole Panelist
Dated: April 15, 2004
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