DECISION

société d'encouragement à l'élevage du Cheval Français (SECF) v. Bazak Telecom and Yanai Arfi

Claim Number:  FA0303000152462

PARTIES

Complainant is société d'encouragement à l'élevage du Cheval Français (SECF), Paris, FRANCE (“Complainant”) represented by Raphael Richard, of CVFM. Respondent is Yanai Arfi Bazak Telecom, Tel Aviv, ISRAEL (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <chevalfrancais.com>, registered with Core-93.

PANEL

The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.

Sandra Franklin as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on March 28, 2003; the Forum received a hard copy of the Complaint on April 9, 2003.

On April 3, 2003, Core-93 confirmed by e-mail to the Forum that the domain name <chevalfrancais.com> is registered with Core-93 and that Respondent is the current registrant of the name. Core-93 has verified that Respondent is bound by the Core-93 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").

On April 15, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 5, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@chevalfrancais.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On May 9, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra Franklin as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent."  Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <chevalfrancais.com> domain name is identical to Complainant’s CHEVAL FRANCAIS mark.

2. Respondent does not have any rights or legitimate interests in the <chevalfrancais.com> domain name.

3. Respondent registered and used the <chevalfrancais.com> domain name in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant holds a French trademark registration for CHEVAL FRANCAIS.  Complainant registered its mark on February 21, 2002, and its Reg. Number is 02 3 149 318.  Complainant is a nonprofit corporation that uses the mark in relation to its exhibition organization for business and advertising, as well as shows and movies that concern horse shows and trotting races.  Complainant also uses the mark in relation to its educational materials such as books, magazines, and colloquium.

Respondent, Bazak Telecom, registered the <chevalfrancais.com> domain name on March 24, 2003.  Internet users who go to the <chevalfrancais.com> domain name are redirected to <drague.com> and <mawebcam.com>.  Both of these websites display pornography.

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.

Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

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

(3) the domain name has been registered and is being used in bad faith.

Identical and/or Confusingly Similar

Complainant has established that it has rights in the CHEVAL FRANCIAS mark through registration of its trademark in France.

Respondent’s <chevalfrancias.com> domain name is identical to Complainant’s mark because it incorporates the whole of Complainant’s mark and merely deletes the space between the two words and adds a top-level domain.  The omission of a space between two words in a domain name does not create a distinct characteristic because spaces are not allowed in domain names.  Moreover, the addition of a top-level domain name does not create a distinct feature capable of overcoming a claim of identical or confusing similarity.  See Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2002) (finding <hannoverre.com> to be identical to HANNOVER RE, “as spaces are impermissible in domain names and a generic top-level domain such as ‘.com’ or ‘.net’ is required in domain names”); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to Complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant).

Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.

Rights or Legitimate Interests

Respondent has failed to submit a Response in this proceeding.  Thus, the Panel is permitted to accept all reasonable allegations and inferences in the Complaint as true.  See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint”).

Moreover, Respondent has failed to invoke any circumstances that could demonstrate rights and legitimate interests in the domain name.  When Complainant asserts a prima facie case against Respondent, the burden of proof shifts to Respondent to show that it has rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).  See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests with respect to the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the Respondent has failed to invoke any circumstance that could demonstrate any rights or legitimate interests in the domain name).

Respondent is using the <chevalfrancias.com> domain name to divert Internet users to <drague.com> and <mawebcam.com>, two pornographic websites.  The Panel finds that this type of use is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).  See MatchNet plc v. MAC Trading, D2000-0205 (WIPO May 11, 2000) (finding that it is not a bona fide offering of goods or services to use a domain name for commercial gain by attracting Internet users to third party sites offering sexually explicit and pornographic material, where such use is calculated to mislead consumers and tarnish the Complainant’s mark); see also Nat’l Football League Prop., Inc. v. One Sex Entm’t Co., D2000-0118 (WIPO Apr. 17, 2000) (finding that the Respondent had no rights or legitimate interests in the domain names <chargergirls.com> and <chargergirls.net> where the Respondent linked these domain names to its pornographic website).

Respondent is known to this Panel as Bazak Telecom.  There is no evidence on record that Respondent is commonly known as CHEVAL FRANCAIS or <chevalfrancais.com>.  Thus, Respondent fails to establish rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii).  See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (Interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").

Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Registration and Use in Bad Faith

Respondent is using Complainant’s mark to attract Internet users to its pornographic websites.  The Panel infers that Respondent is making a profit from the Internet traffic that it diverts to its own websites.  The creation of Internet user confusion for Respondent’s commercial gain via the use of a confusingly similar domain name is evidence of registration and use in bad faith.  See State Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000) (finding bad faith where Respondent registered the domain name <bigtex.net> to infringe on Complainant’s goodwill and attract Internet users to Respondent’s website); see also Am. Online, Inc. v. Tencent Comm. Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000) (finding bad faith where Respondent registered and used an infringing domain name to attract users to a website sponsored by Respondent).

Respondent is using a domain name identical to Complainant’s mark to divert Internet users to pornographic websites.  This type of conduct is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).  See Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith); see also Youtv, Inc. v. Alemdar, FA 94243 (Nat. Arb. Forum Apr. 25, 2000) (finding bad faith where Respondent attracted users to his website for commercial gain and linked his website to pornographic websites).

Thus, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <chevalfrancais.com> domain name be TRANSFERRED from Respondent to Complainant.

Sandra Franklin, Panelist

Dated:  May 19, 2003

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