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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Babette Wasserman v. Ajay Dhunna - Aimpro UK Limited

Case No. D2006-1634

 

1. The Parties

1.1 The Complainant is Babette Wasserman, London, United Kingdom of Great Britain and Northern Ireland.

1.2 The Respondent is Ajay Dhunna, Aimpro UK Limited, Birmingham, United Kingdom of Great Britain and Northern Ireland.

 

2. The Domain Name and Registrar

2.1 The disputed domain name <babettewasserman.com> (the “Disputed Domain”) is registered with Schlund & Partner A.G. (the “Registrar”).

 

3. Procedural History

3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 21, 2006. On December 22, 2006, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name at issue. On December 28, 2006, the Registrar 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 Complaint was submitted in English according with the language of registration agreement, on January 12, 2007. 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”).

3.2 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 January 12, 2007.

3.3 In accordance with the Rules, Paragraph 5(a), the due date for Response was February 1, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 2, 2007.

3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on February 9, 2007. 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.

3.5 The Center appointed the Panel in compliance with Paragraph 7(c) of the Supplemental Rules and, under Paragraphs 5(e) and 14(a) of the Rules, the effect of the default by the Respondent is that the Panel shall proceed to a decision without the benefit of any Response from Respondent.

 

4. Factual Background

4.1 The Disputed Domain is <babettewasserman.com>.

4.2 The Complainant is Babette Wasserman, a UK jewellery designer and owner/Managing Director of Babette Wasserman Limited.

4.3 The Respondent, Ajay Dhunna at Aimpro UK Limited, is an Internet solutions provider, providing design and Internet services, headquartered in the United Kingdom.

4.4 At the time of the Complaint, the Disputed Domain resolved to a website selling jewellery and which claimed to offer “Babette Wasserman Designer Jewellery” and purported to sell designer jewellery ranges. The site also had a sponsored link at the bottom reading “Babette Wasserman Jewellery”.

4.5 At the time of this decision, the Disputed Domain resolves to a blank screen which reads “This domain name, babettewasserman.com is for sale. To enquire or make a genuine offer please email us”. The words “email us” resolve to an email addressed to [e-mail address]@babettewasserman.com.” <babettewasserman.com> is registered in the name of the Respondent.

 

5. Parties’ Contentions

A. Complainant

5.1 The Complainant’s factual and legal contentions can be summarized as follows.

Identical or Confusingly Similar

5.2 The Disputed Domain, <babettewasserman.com>, is identical to the Complainant’s name.

5.3 The Complainant has the following UK trademark: BABETTE WASSERMAN, trademark number 2232217, filed on May 11, 2000 and registered on October 27, 2000.

5.4 Babette Wasserman is the personal name of the Complainant since birth. Babette Wasserman is an extremely unusual name and is an important part of the Complainant’s identity. The Complainant has traded under the name Babette Wasserman since 1997 and provides jewellery and cufflinks under the name Babette Wasserman.

5.5 The Complainant owns the domain name <babette-wasserman.com>. This website is used to sell jewellery and cufflinks. The Respondent’s website claims to offer “Babette Wasserman Designer Jewellery” and has a sponsored link at the bottom saying “Babette Wasserman Jewellery”. The Respondent is clearly not a jewellery designer and is not called Babette Wasserman.

Rights or Legitimate Interests

5.6 The Whois data lists Ajay Dhunna, at Aimpro UK Limited, an Internet solutions provider and provider of Internet and design services, as the registrant of the Disputed Domain. Neither Ajay Dhunna nor Aimpro UK Limited hold rights or legitimate interests in the Disputed Domain.

5.7 The Complainant also asserts that she is known by the name Babette Wasserman both personally in her own right and as owner and Managing Director of Babette Wasserman Limited - the well-known jewellery company which designs and exports to shops all over the world.

5.8 The Complainant maintains that it is inherently offensive to appropriate an individual’s name for the purpose of operating a misleading website of this kind, it is an invasion of the Complainant’s privacy and there is no justification for allowing the Respondent to use Babette Wassserman’s name.

5.9 Accordingly, the Respondent has no rights or legitimate interests in the Disputed Domain.

Registered and Used in Bad Faith

5.10 The Disputed Domain is claimed to have been registered in bad faith. The Complainant has been trading as a jewellery seller and designer for ten years under the name Babette Wasserman. The Complainant asserts that it is extremely confusing if one of its clients or prospective clients searches on the Internet and gets the wrong site since the Disputed Domain is also a jewellery site. The Complainant maintains that the Respondent’s domain name <babettewasserman.com> has been set up for the purposes of gaining the Complainant’s jewellery clients and directing them to their Aimpro business instead.

5.11 The Disputed Domain is being used in bad faith: several of the Complainant’s clients have been misled by the Respondent’s site. Evidence of at least one occurrence of this is found in an e-mail from a client regarding an order for cufflinks intended for the Complainant but which actually reached the Respondent instead. The Respondent in turn e-mailed the Complainant to suggest to her “the possibility of commission for future orders sent to you via my website”. The Respondent suggests in his e-mail that ten per cent is the “going rate”.

5.12 The Complainant maintains that the request for commission in respect of future orders directed to the disputed website “is clear evidence of the respondent wanting to gain business and money from the Babette Wasserman name and ruining our reputation” and that this behaviour is unfairly disrupting their business.

5.13 The Complainant claims that they derive a substantial amount of business from its website and the Respondent’s unlawful conduct could be causing them substantial lost business resulting in financial loss.

5.14 Lastly, the Complainant maintains that the Respondent is “passing himself off” as Babette Wasserman.

B. Respondent

5.15 The Respondent did not file a Response in reply to the Complainant’s contentions and is therefore in default pursuant to Paragraph 5(e) and Paragraph 14 of the Rules. The Panel considers the implications of this in Paragraph 6 below.

 

6. Discussion and Findings

6.1 The Panel has reviewed the Complaint together with its annexes and, in the light of this material, the Panel finds as set out below.

6.2 This Panel does not find there are any exceptional circumstances within Paragraph 5(e) of the Rules so as to prevent this Panel determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.

6.3 Notwithstanding the default of the Respondent, it remains incumbent on the Complainant to make out its case in all respects under the Rules set out in Paragraph 4(a) of the Policy. Namely, the Complainant must prove that:

(a) the Disputed Domain is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (Paragraph 4(a)(i)); and

(b) the Respondent has no rights or legitimate interests in respect of the Disputed Domain (Paragraph 4(a)(ii)); and

(c) the Disputed Domain has been registered and is being used in bad faith (Paragraph 4(a)(iii)).

6.4 However, under Paragraph 14 of the Rules, where a party does not comply with any provision of the Rules, the Panel “shall draw such inferences therefrom as it considers appropriate.”

A. Identical or Confusingly Similar

6.5 There are two separate elements that the Complainant must prove under Paragraph 4(a) (i) of the Policy. The Complainant must provide evidence showing that she has rights in a trademark or service mark and must show that the Domain Name is identical or confusingly similar to the trade or service mark in which she has rights.

6.6 The first element of this dual test is straightforward since the Complainant has a registered UK trademark for the name BABETTE WASSERMAN, which was filed on May 11, 2000, and registered in October 27, 2000, for jewellery, precious metals, precious stones and other related items.

6.7 This second element is also straightforward because the trademark relied upon in this case is a word mark and the Disputed Domain simply comprises that mark without a space between the words “Babette” and “Wasserman” plus the generic “.com” suffix. The Panel therefore finds that, for the purposes of Paragraph 4(a)(i) of the Policy, the Disputed Domain is identical to the trademark on which the Complainant relies.

6.8 The Complainant has therefore made out Paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

6.9 The Disputed Domain directs the user to the Respondent’s business, Aimpro UK Limited, a company that has no apparent connection with the name “Babette Wasserman”.

6.10 The Complainant contends (and as far as the Panel can tell on the evidence before it this is correct) there has never been any relationship between the Complainant and the Respondent, the Respondent has never been licensed or authorized to use the Complainant’s name and the Respondent has at no time been commonly known by or had any connection to the name “Babette Wasserman”.

6.11 In the absence of a Response and taking into account the use of the Disputed Domain explained further below, the Panel therefore concludes that the Complainant has shown a prima facie case of the lack of rights or legitimate interests, which the Respondent has not rebutted.

6.12 The Panel finds that the Complainant has established Paragraph 4(a)(ii) of the Policy

C. Registered and Used in Bad Faith

6.13 It seems to the Panel to be quite clear that the Disputed Domain was chosen with knowledge of the Complainant’s interest in the Babette Wasserman name. Factors that strongly suggest this are:

(a) the name Babette Wasserman is very distinctive and it would seem to the Panel highly implausible that the Respondent selected an identical domain name by chance; and

(b) the website operating from the Disputed Domain purports not only to sell designer jewellery but “Babette Wasserman Designer Jewellery”, indicating that the Respondent was well aware of the Complainant’s reputation in this field of business.

6.14 Why then did the Respondent register the Disputed Domain? The Complainant contends that it was for the purposes of “gaining [the Complainant’s] jewellery clients and directing them to [the Respondent’s] Aimpro business instead”. However, it is not quite clear what the Complainant in this respect actually alleges. The Complaint seems to hint at three possibilities:

(a) The Respondent intended to divert the trade of customers who mistakenly accessed this domain instead of the Complainant’s website to Aimpro UK Limited’s IT business;

(b) The Respondent intended to divert the trade of customers who mistakenly accessed this domain instead of the Complainant’s website to its own competing jewellery business;

(c) The Respondent set up the website in order to divert customers from the Complainant’s website to its own with the intention to pass customer orders back.

6.15 Frankly, none of these explanations is wholly satisfactory. The first is not entirely beyond the realms of possibility since the website in question contains a footnote that states that Aimpro UK Limited has designed it. Nevertheless, it seems odd that an entity wishing to sell IT services might hope to achieve this by setting up a website impersonating a third party in this manner.

6.16 As to the second possible explanation, there is no evidence provided to the Panel to the effect that the Respondent was operating a competing business to the Complainant other than the website itself. Even the website material provided does not contain contact pages or other content that suggests that the Respondent is directly soliciting sales.

6.17 The third possibility also seems unlikely. The Complainant does provide evidence of the Respondent to the Complainant on October 4, 2006, forwarding a misdirected email to the Respondent from a client regarding an order. In that email, the Respondent does suggest to the Complainant that it receive a commission in relation to this order. However, this appears to be more a case of the Respondent trying to take advantage of a particular instance of confusion rather than part of a concerted strategy to make money on commissions from orders diverted in this manner.

6.18 In the Panel’s view, the fact that at the bottom of the relevant web pages are a series of “Sponsored Links” in relation to subject matter as diverse as air flights, computer training courses and bespoke tailors, is somewhat more revealing. This suggests to the Panel that a more likely explanation of the Respondent’s conduct, was that the Disputed Domain was registered in order to divert traffic intended for the Complainant’s business to it own web page with a view to making money from those who “clicked through” those links.

6.19 Nevertheless, whatever the exact method by which the Respondent sought to gain commercial advantage from its activities, the Panel accepts (as the Complainant alleges) that commercial advantage in some form was the Respondent’s intent. Whilst the Panel does not necessarily accept that one request for commission in this case evidences that the Respondent registered the domain to obtain commissions, it does accept that this constitutes evidence that in some way or another the “[R]espondent want[ed] to gain business and money from the Babette Wasserman name”.

6.20 The Panel, therefore, concludes that the Respondent’s activities prima facie fall within Paragraph 4(b)(iv) of the Rules i.e. that the Respondent:

“by using the domain name, [has] attempted to attract, for commercial gain, Internet users to [its] website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its website or location or of a product or service on [its] website or location” .

6.21 This is one of the non-exhaustive list of circumstances set out in Paragraph 4(b) of the Policy that are said to evidence bad faith registration and use.

6.22 Accordingly, the Panel finds that the Complainant has satisfied the requirement of Paragraph 4(a)(iii) of the Policy that the Disputed Domain “has been registered and is being used in bad faith” by the Respondent.

 

7. Decision

7.1 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, <babettewasserman>, be transferred to the Complainant.

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Matthew S. Harris
Sole Panelist

Dated: February 23, 2007