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ADMINISTRATIVE PANEL DECISION
Asprey & Garrard Limited and Garrard Holdings Limited
Case No. D2001-1501
1. The Parties
The Complainant is Asprey & Garrard Limited, a private limited company incorporated in England with registered office at 167 New Bond Street, London, United Kingdom and Garrard Holdings Limited, a private limited company incorporated in England with registered office at 23 Albemarle Street, London, United Kingdom.
According to the Whois database of Network Solutions Inc. ("NSI"), the Respondent is <www.24carat.co.uk/domainnames.html> of 521 Lytham Road, Blackpool, Lancashire, United Kingdom. The website at <www.24carat.co.uk> indicates that it belongs to Chard 1964 Limited, a private limited company incorporated in United Kingdom of the same address.
2. The Domain Names and Registrar
The domain name in dispute is <garrards.com> ("the Domain Name"). The Registrar is Network Solutions, Inc. (NSI).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center ("the Center") by email on December 28, 2001, and in hard copy on January 4, 2002. By email of January 9, 2002, NSI verified that it is the Registrar of the disputed Domain Name, that the registration was governed by NSI’s registration agreement in English, and that it had received a copy of the Complaint.
On January 10, 2002, the Notification of Complaint and Commencement of Administrative Proceedings ("the Notification") was sent by DHL to the Respondent at www.24carat.co.uk/domainnames.html, Chard 521 Lytham Road, Blackpool, Lancashire FY4 1RJ, UK, by post to Doug Smith at 30 Northumberland Avenue, Blackpool, Lancashire FY2 9SA, UK (Administrative, Technical and Billing Contact according to the NSI WHOIS database), by fax to +44 1253508180 (fax number of Administrative, Technical and Billing Contact according to the NSI WHOIS database), and by email to <firstname.lastname@example.org> and <email@example.com>. The email to <firstname.lastname@example.org> was returned but no other email return notifications were received. Delivery by courier to the Respondent and transmission by fax to the Administrative, Technical and Billing Contact were confirmed.
Having reviewed the file, the Panel concludes that the Complaint complied with applicable formal requirements and was properly notified to the Respondent.
No Response having been received from the Respondent, the Center sent the Notification of Respondent Default on February 4, 2002. The sole panelist, Jonathan Turner, submitted a Statement of Acceptance and Declaration of Impartiality and Independence and was duly appointed on February 13, 2002. In accordance with paragraph 15 of the Rules, the Panel was required to forward its decision to the Center by February 27, 2002.
4. Factual Background
The Complainant is a well-known jeweler made up of two long-established, formerly separate businesses, Asprey and Garrard. It has registered "Garrard" as a trade mark for jewelry and other goods in the UK and other countries.
The Respondent carries on a business of selling jewelry by mail order, which is advertised through its website at <www.24carat.co.uk>. The page <www.24carat.co.uk/domainnames.htm> of this website advertises a large number of domain names, most of them relating to jewelry, for sale at prices varying from Ј1000 to $100,000 or more. These include the Domain Name itself, which is offered at $50,000. There appears to have been no other use by the Respondent of the Domain Name. There is no web page at <www.garrards.com> and, as noted above, email to <email@example.com> was returned.
The Complainant’s solicitors wrote to the Respondent on March 14, 2001, and November 19, 2001, drawing attention to the Complainant’s rights and requesting undertakings inter alia to transfer the Domain Name to the Complainant. The Respondent did not reply.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to the trade mark "Garrard" in which it has registered and unregistered rights; that the Respondent has no rights or legitimate interest in respect of the Domain Name; and that the Respondent registered and is using it in bad faith, as indicated by the absence of any legitimate use, the fact that the name given for the registrant is itself a hypertext link to the Respondent’s website, and the likelihood that the Respondent intended to use it to attract Internet users to its website and/or acquired it for the purpose of sale at a profit and/or to disrupt the Complainant’s business.
As noted above, the Respondent has not submitted a Response to the Complaint.
6. Discussion and Findings
The Panel notes that the Complaint has been filed on behalf of two companies, which it assumes are in common control. The Uniform Domain Name Dispute Resolution Policy ("the Policy") and the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") do not expressly provide for multiple Complainants, but the Panel considers that, as in other documents, the singular may be interpreted as including the plural where appropriate.
In accordance with paragraph 4 of the Uniform Domain Name Dispute Resolution Policy ("the Policy"), a Complainant must prove (i) that the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and (iii) that the domain name has been registered and is being used in bad faith.
As to the first requirement, the Panel considers that the Domain Name is confusingly similar to the trade mark "Garrard" in which the Complainant undoubtedly has registered and unregistered rights.
As to the second requirement, it is apparent that the Respondent does not have any right or legitimate interest in respect of the Domain Name. The only use made by the Respondent of the Domain Name has been to offer to sell it at a substantial price.
As to the third requirement, the Panel is satisfied that the Respondent registered and is using it in bad faith for the purpose of selling it to the Complainant or a competitor of the Complainant for a consideration greatly in excess of the cost of registration. As noted above, the Domain Name is currently offered for sale on the Respondent’s website for $50,000. In the context of the many other domain names relating to jewelry registered and offered for sale by the Respondent, it is clear that the Respondent had the Complainant in mind. Furthermore, at a price of $50,000 the Domain Name could only be of interest to someone wishing to take advantage of the goodwill of the famous Garrard name.
The Panel further considers that the use of the Domain Name by a person other than the Complainant would be likely to cause confusion and that the Domain Name should accordingly be transferred to the Complainant. Since the Complainant comprises two companies, the Domain Name should be transferred to them jointly, or (if this is not possible) to the first-named Complainant.
The Panel decides that the Domain Name <garrards.com> should be transferred to the Complainants, Asprey & Garrard Limited of 167 New Bond Street, London, United Kingdom and Garrard Holdings Limited of 23 Albemarle Street, London, United Kingdom or (if it is not possible to transfer it to both companies jointly) to Asprey & Garrard Limited of 167 New Bond Street, London, United Kingdom.
Dated: February 25, 2002