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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Swarovski A.G v. Modern Empire Internet Ltd

Case No. D2006-0148

 

1. The Parties

The Complainant is Swarovski A.G, Feldmeilen, Switzerland, represented by O’Melveny & Myers, Hong Kong, SAR of China.

The Respondent is Modern Empire Internet Ltd, Hong Kong, SAR of China.

 

2. The Domain Name and Registrar

The disputed Domain Name <swarvoski.com> is registered with Moniker Online Services, LLC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 3, 2006. On February 6, 2006, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On February 6, 2006, Moniker Online Services, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the 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 the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 9, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was March 1, 2006. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on March 2, 2006.

The Center appointed Keita Sato as the sole panelist in this matter on March 13, 2006. 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 the Rules, paragraph 7.

 

4. Factual Background

The Complainant is a joint stock company organized and existing under Liechtenstein law. It was founded in 1895 as a crystal products manufacturer, and continues its business at present. The Complainant has registered the trademark SWAROVSKI in Hong Kong as follows;

Reg. No.	Date	Product or service
1489 of 1989	Feb. 06, 1987	Articles of leather ornamented with glass stones embedded in plastic, partly with a rivet-type or with glued-on rivet-type metal pieces(class 18)
2489 of 1989	Feb. 06, 87	Genuine and imitation jewelry, and so on(class 14)
1490 of 1989	Feb. 06, 87	Crystal chandelier parts; crystal(glassware) with or without combination of metals, and so on(class 21)
1491 of 1989	Feb. 06, 87	Fabrics ornamented with glass stones embedded by means of injection molding, and so on(class 24)
3088 of 1989	Feb. 06, 87	Glass buttons and plastic buttons; ribbons and tapes as well as component parts ornamented with glass stones and so on (class 26)
2968 of 1989	Jun. 03, 88	Table ware, fruits bowls, schnapps glasses, hollow glass ware; candlesticks of glass (class 21)
2967 of 1989	Jun. 03, 88	Table cutlery(knives, spoons and forks) (class 8)
2485 of 1989	Jun. 03, 88	Eyeglasses (class 9)
2961 of 1989	Jun. 03, 88	Wrist watches, table clocks (class 14)
3843 of 1989	Jun. 03, 88	Apparatus for lighting, chandeliers (class 11)
354 of 1990	Feb. 16, 90	Knitwear, pullovers, scarves, belts and hoes (class 25)

Also, the Complainant has registered the trademark “SWAROVSKI” in various jurisdictions, such as Austria, Brazil, Canada, Finland, Ireland, Italy, Japan, Liechtenstein, Mexico, Norway, Sweden, United Kingdom of Great Britain and Northern Ireland and United States of America.

The Respondent is a company, named Modern Empire Internet Ltd, whose address is in Hong Kong according to the WHOIS database. It has registered the Domain Name <swarvoski.com> through Moniker Online Services, Inc.

 

5. Parties’ Contentions

A. Complainant

The Complainant asserts that the Domain Name at issue is confusingly similar to the trademark SWAROVSKI owned by the Complainant, since the Domain Name at issue incorporates a slightly misspelled version of the Complainant’s name and trademark, interchanging the order of the letters “o” and “v”. Notwithstanding this situation, the dominant and obvious impression of the Domain Name at issue is that it is virtually identical with the Complainant’s name and trademark, which is registered in various jurisdictions. Also, the Complainant asserts that the Respondent has no rights or legitimate interests in the Domain Name at issue, since on line searches on February 2, 2006, of the trademark registries of the Hong Kong Intellectual Property Department, Singapore Intellectual Property Office, United States Patent and Trademark Office, United Kingdom Patent Office and WIPO, show that the Respondent neither owns nor has applied for any trademark or service mark registrations encompassing the Domain Name at issue, or any variations thereof, in those respective jurisdictions. Finally, the Complainant alleges that the Respondent registered and used the Domain Name at issue in bad faith, since the Respondent intentionally attempted to attract for commercial gain, internet users to the Respondent’s website or other online locations, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website or location or of a product or service on the Respondent’s website or location.

B. Respondent

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

 

6. Discussion and Findings

As noted above, although the Center has made all reasonable efforts to bring the dispute to the Respondent’s attention and to enable the Respondent to be heard, there has been no Response. In these circumstances, paragraphs 5(e) and 14(a) of the Rules direct the Panel, in the absence of exceptional circumstances, to decide the dispute on the basis of the Complaint where the Respondent does not submit a Response. This is not a simple “rubber stamping”, however, as paragraph 15(a) of the Rules directs the Panel to decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and principles of law that the Panel deems applicable.

For the Complaint to succeed, the Panel must, under paragraph 4(a) of the Policy, be satisfied:

(i) that the Domain Name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(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.

The Panel deals with each of these requirements in turn.

A. Identical or Confusingly Similar

The Complainant has obtained trademark protection for SWAROVSKI. Indeed the Complainant has registered its trademark SWAROVSKI in several jurisdictions as noted above. Further, the Panel finds that the Domain Name at issue incorporates a slightly misspelled version of the Complainant’s name and trademark, interchanging the order of the letters “o” and “v”. The word element of the Domain Name at issue created by the interchange of the “o” and the “v” is not a plain English word or otherwise generic. There are likely to be circumstances where a person might unintentionally type in the Domain Name instead of the trademark term, particularly having regard to the potential for persons using the internet to “guess” at domain names. This is a typical “typo-squatting” case in which a finding of confusing similarity is appropriate. See e.g. GEOCITIES v. GEOCITIES.COM, WIPO Case No. D2000-0326; AltaVista Company v. Saeid Yomtobian, WIPO Case No. D2000-0937; America Online, Inc. v. Johuathan Investments, Inc. and AOLLNEWS.COM, WIPO Case No. D2001-0918; and Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775. The first requirement is made out.

B. Rights or Legitimate Interests

The Panel finds that the Respondent does not have any rights or legitimate interests in the Domain Name at issue. The Respondent does not give any evidence that it has registered trademark over SWARVOSKI as a trademark in any jurisdictions; and the search results, is supplied by the Complainant (Annex 5 of the Complaint), show no positive results for any registered or used trademark for SWARVOSKI in the name of the Respondent. Also, it is strongly assumed that the Respondent has no legitimate interests, since this dispute is a so-called typo-squatting case. A use that merely operates to redirect mistaken typists to other sites is not enough to create a legitimate use without a greater connection between the domain name and the redirected site. See, e-Duction, Inc. v. John Zuccarini, d/b/a The Cupcake Party & Cupcake Movies, WIPO Case No. D2000-1369. Accordingly, the second requirement is also made out.

C. Registered and Used in Bad Faith

The Panel finds that the Domain Name at issue was registered in bad faith. The Respondent’s website operated under the Domain Name at issue offers links to Swarovski jewelry products and other related information. It is Apparent that the Respondent is aware of the Complainant’s SWAROVSKI trademark when it registered the Domain Name at issue.

Further, the Panel finds the Domain Name at issue is used in bad faith for two reasons. First, the Complainant claims that the Respondent’s bad faith use is further evidenced by the use of an incorrect spelling of the mark SWAROVSKI within the Domain Name at issue. The Panel agrees with the Complainant and determines in this regard that the Respondent has not justified its reason for incorporating a spelling variation in the Domain Name at issue. The most plausible explanation for such variation seems related to the Respondent’s attempt to increase its revenues and profits by additionally targeting those Internet users who mistype or ignore the proper spelling of the SWAROVSKI mark and directing such confused consumers to different commercial websites, including websites with pop-up linkage, which in return remunerate the Respondent for each corresponding click-through or automatically pop-up giving access to their sites. Accordingly, the Panel decides that deliberately using a misspelling variation in the disputed Domain Name constitutes a further factor of the Respondent’s bad faith in registering and using the Domain Name at issue. See, Sharman License Holdings, Limited v. IcedIt.com, WIPO Case No. D2004-0713 in which the Panel found that typo-squatting facts in this proceedings evidenced the respondent’s bad faith in registering and using the domain name at issue, and Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556. The Respondent might argue that the websites which are linked with the Respondent’s domain name received no remuneration from such sites, however, the Respondent has failed to show evidence for such an argument. Bad faith use of the Domain Name at issue is therefore strongly assumed in this dispute. Secondly, the Panel found the Respondent has engaged in similar patterns of “typo-squatting” and “cyber squatting” in the past in respect of domain names in which it has no apparent interest, or connection with. For example, see, NBTY, Inc v. Modern Empire Internet Ltd, WIPO Case No. D2005-0832, Weld Racing, Inc. v. Modern Empire Internet Limited, WIPO Case No. D2005-0305, and Croatia Airlines d.d. v. Modern Empire Internet Ltd, WIPO Case No. D2003-0455. In those cases, it was determined that the Respondent registered and used the disputed domain names in bad faith. These facts are evidence of the registration and use of the Domain Name at issue in bad faith under paragraph 4(b)(ii) of the Policy. Thus, the third requirement is made out.

 

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name<swarvoski.com> be transferred to the Complainant.

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Keita Sato
Sole Panelist

Dated: March 27, 2006