Société Du Figaro S.A. of Paris, France, just lost its bid to grab the domain figaro.tv from a dead guy
– The Respondent is Cut Company of Krefeld, Germany;
– The owner – and seemingly only economic actor – of said company was Mr. Blumtritt.
– According to the documents filed by the Complainant, Mr. Blumtritt passed away on June 28, 2013.
– A cease and desist letter was sent in October 2013, after the presumed death of Mr. Blumtritt;
– The Complaint was filed on November 8, 2013, also after the presumed death of Mr. Blumtritt;
– Neither the cease and desist letter, nor the Complaint received an answer;
– Taking into account the fact that “Figaro” not only refers to the trademark of the Complainant, but also to a well-known name, the Panel also requested the Complainant, to inform the Panel if it wished to contact the successors of the Respondent in order to settle the dispute, or whether it preferred that the Panel issue a decision.
The Complainant answered the following day, without providing any further information as to the succession of the Respondent and restating its position.
The Complainant further added that prior to “the Respondent’s death”, on January 15, 2013 the Complainant offered the Respondent the amount of “$800” to recover the disputed domain name and that the Respondent provided no response to this offer.
4. Factual Background
The Complainant is a newspaper of French press founded in 1826.
The Complainant owns several trademarks including the distinctive wording “Figaro”.
The Complainant also owns many domain names including this wording.
The disputed domain name
The Respondent seems to be a sole-man company who operated a hairdresser business in Krefeld, Germany. It is not known to the Panel whether the company still exists, as its owner, Mr. Blumtritt, seems to have passed away on June 28, 2013.
As at the date of this decision, the disputed domain dame does not resolve to an active website (the “Website”).
(a) In the event that a Party, in the absence of exceptional circumstances, does not comply with any of the time periods established by these Rules or the Panel, the Panel shall proceed to a decision on the complaint.
(b) If a Party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, these Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
In the present case, exceptional circumstances appear to have arisen: The person seeming to be Respondent’s sole proprietor, Mr. Blumtritt, presumably passed away on June 28, 2013, well before the Complaint was filed, according to evidence filed by the Complainant itself.
Despite the special circumstances of the case, the Panel has decided to issue its decision. The Panel does not draw any particular inferences from the default of the Respondent, other than his presumed death.
The Complainant contends that the Respondent is not in any way related to the Complainant and is not on any other basis licensed or authorized to use its FIGARO mark. Further, the Complainant submits that the Respondent is not known by the name “Figaro” and has no need to use this name.
However, and for the above mentioned reasons relating to the apparent death of its sole-proprietor, the Respondent has not filed an answer. It has hence not had the possibility of demonstrating its rights or legitimate interests.
Nevertheless, the Panel considers that the indications of the file and special characteristics of the name “Figaro” allow the Panel to analyze the second element of the Policy, as follows: according to the Panel, “Figaro” is a recognized male name in the Italian language which refers in particular to the world-famous Mozart Opera, “Nozze di Figaro”.
Given that various panels have acknowledged that complainants cannot, in certain circumstances, assert exclusive rights under the UDRP in fairly short, non-fanciful names in respect of unrelated fields of business (see Michele Dinoia, WIPO Case No. D2004-0648, in respect of the name “Sallie”; and Deanna S.p.A. v. Worldwide Media Inc., WIPO Case No. D2003-0964, in respect of the name “Deanna”), on the current record the Panel is not persuaded by the Complainant’s contentions that the Respondent does not (or in this case, did not) have rights or legitimate interests in the disputed domain name.
The situation may have been different if there had been evidence in the case record that the Respondent’s intention was to use the disputed domain name for a news or information website, in which case rights or legitimate interests in the disputed domain name could not have arisen. As indicated previously there is no evidence in the case record as to any actual use of the disputed domain name and the Panel is therefore unable to find that the Respondent was targeting the Complainant.
For obvious reasons linked with the apparent death of the owner of the Respondent, no indications have been brought to the knowledge of the Panel as regards preparations to use the disputed domain name in connection with a bona fide offering of services. The disputed domain name is currently inoperable so that the Panel is unable to establish the intentions of the Respondent as to the Website.
For the Complainant to succeed in this claim, it must satisfy the Panel that the Respondent knew or was likely to have known of the Complainant’s FIGARO trade mark at time of registering the disputed domain name.
Although the Complainant has provided some evidence of the reputation of its FIGARO mark, the Panel notes that the evidence does not suggest that such reputation is not limited to French speaking countries and regions.
The Complainant further argues that the Respondent has not replied to the cease-and-desist letter.
It has already been explained above why this was probably the case, and the absence of a reply does not convince the Panel of the bad faith of the Respondent.
As to the absence of a reply to the Complainant’s email of January 15, 2013, the Panel does not find that this evidences bad faith on the part of the Respondent. Furthermore, the Panel is of the opinion that the Complainant should have undertaken more efforts to identify and contact the successors of the Respondent, before filing the Complaint. Additionally, the Complainant has not used the opportunity provided to it by Procedural Order No 1.
In light of this, and also considering the absence of any evidence that the Respondent has targeted the Complainant in any way through the registration and/or use of either the disputed domain name or the Website, the Panel is unable to find that the Respondent registered and used the disputed domain name in bad faith.
Finally, no conclusion can be inferred from the absence of answers to the cease and desist letter sent after the Mr. Blumtritt presumably died and to the Complaint. Again, this has to be explained by the fact that the Respondent’s sole-proprietor has apparently died.
The Panel accordingly finds that the Complainant has failed to discharge the burden of proving that the Respondent registered and used the disputed domain name in bad faith, and paragraph 4(a)(iii) of the Policy has not been satisfied.
In any event, the Panel notes that the disputed domain name was set to expire in January 2014. Should the disputed domain name become available for registration, the Complainant may wish to contact the Registrar in this regard.