Herve Thermique v Franck maxime underwood

WIPO Case No. D2025-1276

ARBITRATION

AND

MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

HERVE THERMIQUE v. Franck maxime underwood

Case No. D2025-1276

1. The Parties

The Complainant is HERVE THERMIQUE, France, represented by INSCRIPTA, France.

The Respondent is Franck maxime underwood, France.

2. The Domain Names and Registrar

The disputed domain names <herves-thermique.com> and <herve-thermiques.com> are registered with

PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 28, 2025. On March 28, 2025, the Center transmitted by email to the Registrar a request for registrar verif ication in connection with the disputed domain names. On March 29, 2025, the Registrar transmitted by email to the Center its verif ication response disclosing registrant and contact information for the disputed domain names which differed from the named Respondent (GDPR Masked) and contact information in the Complaint. The Center sent an email communication to the Complainant on March 31, 2025, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant f iled an amendment to the Complaint on March 31, 2025.

The Center verif ied that the Complaint together with the amendment to the Complaint satisf ied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), 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 the Rules, paragraphs 2 and 4, the Center formally notif ied the Respondent of the Complaint, and the proceedings commenced on April 4, 2025. In accordance with the Rules, paragraph 5, the due date for Response was April 24, 2025. The Respondent did not submit any response. Accordingly, the Center notif ied the Respondent’s default on April 25, 2025.

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The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on May 2, 2025. The Panel f inds 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 the Rules,

paragraph 7.

4. Factual Background

The Complainant is a French company, incorporated in 1976, specializing in heating, ventilation, air-conditioning, plumbing and isolation services, with over 2,800 employees in 2024 and a turnover in 2023 of more than EUR 470 million.

The Complainant owns inter alia the French trademark HERVE THERMIQUE, registered under No. 1412489 on June 18, 1986 (hereinaf ter referred to as: “the Mark”).

The Complainant is also the registrant of several domain names, including <herve-thermique.com>, which resolves to its of f icial website.

The disputed domain name <herve-thermiques.com> was registered on March 20, 2025, and the disputed domain name <herves-thermique.com> was registered on March 21, 2025.

The Complainant has submitted evidence that the disputed domain names resolved to a copycat website similar to its official website. At the time of this decision, the disputed domain names do not resolve to any active website.

5. Parties’ Contentions
A. Complainant

The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the disputed domain names.

Notably, the Complainant contends that:

(i)        the disputed domain names reproduce the Mark, in which the Complainant has rights, and are

confusingly similar to the Mark insofar as the disputed domain names contains the Mark in its entirety, which
remains recognizable in the disputed domain names;

(ii) it never authorized the Respondent to use the Mark in any manner and it never had any affiliation with the Respondent, who has no rights or legitimate interests in respect of the disputed domain names;

(iii) the Respondent has registered and is using the disputed domain names in bad faith; in particular, the Respondent had knowledge of the Mark when registering the disputed domain names, and by creating confusion with the Mark, the Respondent is using the disputed domain names in bad faith.

The Complainant requests that the disputed domain names be transferred to the Complainant.

B. Respondent

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

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6. Discussion and Findings
6.1. Procedural Aspects - Failure to Respond

Under the Rules, paragraphs 5(f ) and 14(a), the ef fect of a failure to submit a formal response by the Respondent is that, in the absence of exceptional circumstances, the Panel shall proceed to a decision on the basis of the Complaint.

Under paragraph 4(a) of the Policy, it is the Complainant’s burden to establish that all three of the required criteria for a transfer of the disputed domain name have been met, even in the absence of a formal response.

Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences f rom the
Respondent’s failure to f ile a formal response as it considers appropriate under the circumstances.

In this case, the Panel finds that the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant.

In particular, by failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy or otherwise, f rom which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.

Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent has acted in bad faith.

6.2. Requirements of paragraph 4(a) of the Policy

A. Identical or Confusingly Similar

It is well accepted that the f irst element functions primarily as a standing requirement. The standing
(or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison
between the Complainant’s trademark and the disputed domain name. See WIPO Overview of WIPO Panel

Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7.

The Complainant has shown rights in respect of a trademark or service mark for the purposes of the Policy.
WIPO Overview 3.0, section 1.2.1.

The Panel notes that as aforesaid, the Respondent did not rebut these assertions and finds that despite the addition of a f inal letter “s” in the disputed domain names, either af ter the element “herve” or af ter the element “thermique”, the Mark is recognizable within the disputed domain names.

The Panel f inds that the above-noted differences do not prevent a finding of confusing similarity between the disputed domain names and the Mark for the purposes of the Policy. WIPO Overview 3.0, section 1.8.

Regarding the generic Top-Level Domain (“gTLD”) “.com” in the disputed domain names, it is well established that a gTLD does not generally affect the assessment for the purpose of determining identity or confusing similarity. WIPO Overview 3.0, section 1.11.1.

Accordingly, the disputed domain names are confusingly similar to the Mark for the purposes of the Policy.

WIPO Overview 3.0, section 1.7.

The Panel f inds the f irst element of the Policy has been established.

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B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name.

Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the difficult task of “proving a negative”, requiring information that is of ten primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (although the burden of proof always remains on the complainant). If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisf ied the second element. WIPO Overview 3.0,

section 2.1.

Having reviewed the available record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names. The Respondent has not rebutted the Complainant’s prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain names such as those enumerated in the Policy or otherwise.

The Panel f inds the second element of the Policy has been established.

C. Registered and Used in Bad Faith

The Panel notes that, for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular, but without limitation, that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith.

In the present case, the Panel finds that the Respondent’s decision to register the disputed domain names, confusingly similar to the Mark, reflects the Respondent’s specific targeting of the Mark, the Respondent’s knowledge of the composition of the Complainant’s official domain name <herve-thermique.com>, and the Respondent’s clear intent to capitalize on the Complainant’s rights, demonstrated by the Respondent’s attempt to attract Internet users for commercial gain by using the disputed domain names to resolve to a copycat website similar to that of the Complainant.

Furthermore, some UDRP panels have held that in certain circumstances, registrants of domain names have a duty to abstain from registering and using a domain name, which is either identical or confusingly similar to a prior trademark held by others and which would infringe upon or otherwise violate the rights of a third party. See Policy, paragraph 2(b); Nike, Inc. v. B. B. de Boer, WIPO Case No. D2000-1397; Nuplex Industries Limited v. Nuplex, WIPO Case No. D2007-0078; Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304; BOUYGUES v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325; Media

General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964; and mVisible

Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141.

As a consequence, the Panel f inds that the registration and use of the disputed domain names by the

Respondent constitutes bad faith under the Policy.

Based on the available record, the Panel finds that the Complainant has established the third element of the
Policy.

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7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain names <herves-thermique.com> and <herve-thermiques.com> be transferred to the Complainant.

/Louis-Bernard Buchman/
Louis-Bernard Buchman
Sole Panelist
Date: May 9, 2025