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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Christian Dior Couture v. TP

Case No. D2007-0877

 

1. The Parties

The Complainant is Christian Dior Couture, Paris, France, represented by Cabinet Marc Sabatier, France.

The Respondent is TP, Honolulu, Hawaii, United States of America.

2. The Domain Name and Registrar

The disputed domain name <misschristiandior.com> is registered with eNom.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2007. On June 15, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On June 15, 2007, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 June 26, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 16, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 17, 2007.

The Center appointed Luca Barbero as the sole panelist in this matter on August 2, 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.

 

4. Factual Background

The Complainant is the owner inter alia, of the following trademarks :

- International trademark CHRISTIAN DIOR No. 134 476A filed on January 26, 1948 in classes 14, 18, 20, 23, 24, 25, 26 and 28 (for leather wares, clothes)

- International trademark CHRISTIAN DIOR No. R 357 347 filed on June 20, 1969 in class 9 (for sunglasses)

- United States of America trademark CHRISTIAN DIOR No. 543 994 filed on April 23, 1949 in class 18 (for bags, leather wares)

- United States of America trademark CHRISTIAN DIOR No. 954 404 filed on July 6, 1970 in class 9 (for sunglasses).

The domain name was registered on April 24, 2006.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the disputed domain name <misschristiandior.com> is confusingly similar to trademarks in which Complainant has rights.

The Complainant highlights that Christian Dior Couture uses the trademark CHRISTIAN DIOR all over the world.

Moreover, the Complainant states that Christian Dior Couture is very well-known for its goods sold under the trademarks CHRISTIAN DIOR all over the world.

With reference to rights or legitimate interests in respect of the disputed domain name, the Complainant states that the Respondent has no trademark rights and the Respondent is not commonly known under the domain name <misschristiandior.com>.

As to the evidence of bad faith at the time of registration the Complainant indicates that “as the company CHRISTIAN DIOR COUTURE is very well-known all over the world, it is not possible to not know its existence and the existence of its trademarks”.

With reference to the use of the domain name in bad faith, the Complainant contends that the web on the disputed domain name is active and that “this web site proposes some links which send the net surfer towards another web sites which sell leather ware branded CHRISTIAN DIOR or other goods CHRISTIAN DIOR”. The Complainant provides the Panel with screenshots of the relevant web sites.

As additional circumstance evidencing bad faith, the Complainant contends that the name of the company or the physical person, owner of the domain name is not clearly indicated in the Whois of the domain name <misschristiandior.com>.

B. Respondent

The Respondent did not reply to the Complainant’s contentions and is in default. Therefore the Panel shall decide this proceeding on the basis of Complainant’s submissions, drawing such inferences from the Respondent’s default that are considered appropriate according to paragraph 14(b) of the Rules.

 

6. Discussion and Findings

According to paragraph 15(a) of the Rules: “A panel shall decide a Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.” Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(i) that the Domain name registered by the Respondent is identical or confusingly similar to a trademark or a service 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.

A. Identical or Confusingly Similar

The Complainant has provided ample evidence of ownership of a number of trademark registration such as International trademark CHRISTIAN DIOR No. 134 476A filed on January 26, 1948 in classes 14, 18, 20, 23, 24, 25, 26 and 28 (for leather wares, clothes), International trademark CHRISTIAN DIOR No. R 357 347 filed on June 20, 1969 in class 9 (for sunglasses), United States of America trademark CHRISTIAN DIOR No. 543 994 filed on April 23, 1949 in class 18 (for bags, leather wares) and United States of America trademark CHRISTIAN DIOR No. 954 404 filed on July 6, 1970 in class 9 (for sunglasses).

The Panel notes that the domain name registered by the Respondent reproduces the well-known trademark CHRISTIAN DIOR in its entirety. Pursuant to a number of prior decisions rendered under the Policy, the addition of descriptive terms to a trademark is not a distinguishing feature, inter alia, Barry D. Sears, Ph.D. v. YY / Yi Yanlin, WIPO Case No. D2007-0286 (“diet” added to ZONE mark); Fry’s Electronics, Inc. v. Whois ID Theft Protection, WIPO Case No. D2006-1435 (“electronics” added to FRY mark); Wal-Mart Stores, Inc. v. Henry Chan, WIPO Case No. D2004-0056 (“chase”, “girlsof”, “jobsat”, “sams”, “application”, “blackfriday”, “blitz”, “books”, “career(s)”, “check”, “flw”, “foundation”, “games”, “mart”, “photostudio”, “pictures”, “portrait”, “portraitstudio(s)”, “registry”, “retaillink” and “wire” added to WALMART mark); PepsiCo, Inc. v. Henry Chan, WIPO Case No. D2004-0033 (“chart”, “music”, “arena”, “sweep”, “nfl” and “coliseum” added to PEPSI mark); International Organization for Standardization ISO v. Quality Practitioners Institute and Web site Pros, Inc. and Quality, WIPO Case No. D2005-1028 (“net” and “training” added to ISO mark); Banca Intesa S.p.A. v. Roshan Wickramaratna, WIPO Case No. D2006-0215 (“online” added to BANCAINTESA mark). In the present case “miss” should be regarded along the lines of the interpretation adopted in all the prior decisions mentioned above especially as it is likely to increase the likelihood of confusion in the context of the fashion industry.

In view of the above, the Panel finds that the disputed domain name is confusingly similar to the trademarks in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant must show that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent may establish a right or legitimate interest in the disputed domain name by demonstrating in accordance with paragraph 4(c) of the Policy any of the following:

(a) that it has made preparations to use the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services prior to the dispute; or

(b) that it is commonly known by the domain name, even if it has not acquired any trademark rights; or

(c) that it intends to make a legitimate, non-commercial or fair use of the domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark.

It is well-established principle that the burden of proof lies on the Complainant. However, satisfying the burden of proving a lack of the Respondent’s rights or legitimate interests in respect of the domain name according to paragraph 4(a) of the Policy is potentially quite onerous, since proving a negative circumstance is always more difficult than establishing a positive one.

Accordingly, it is sufficient that the Complainant shows prima facie case in order to shift the burden of proof on the Respondent. If a respondent fails to demonstrate rights and legitimate interests in the domain name in accordance with paragraph 4(c) of the Policy or on any other basis, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy. (Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455, Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110, Met America Mortgage Bankers v. Whois ID Theft Protection, NAF Case No. 852581).

In the case at hand, by not submitting a Response, the Respondent has failed to invoke any circumstance that could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain names.

Indeed there is no relation, disclosed to the Panel or otherwise apparent, between the Respondent and the Complainant. The Respondent is not a licensee of the Complainant, nor has the Respondent otherwise obtained an authorization to use Complainant’s trademarks and name under any circumstance and to sell Complainant’s products.

Furthermore, there is no indication before the Panel that the Respondent has made preparations to use the domain name in connection with a bona fide offering of goods or services or intends to make a legitimate, non-commercial or fair use of the domain name.

The Panel notes that the domain name was, at the time of the filing of the Complaint, and still is pointing to a sponsored pay per click website aimed only at directing visitors to competing third party commercial websites.

The Panel finds that under the circumstances, the use of the disputed domain name merely to direct visitors to various third party commercial websites does not constitute a legitimate, non-commercial use of the Domain Name under the Policy. Manheim Auctions Inc. v. Whois ID Theft Protection WIPO Case No. D2006-1044.

Along the same lines see also Bayerische Motoren Werke AG v. (This Domain For Sale) Jonathan Investments, Inc., WIPO Case No. D2002-0787, where the panel found that the respondent’s use of the disputed domain name to resolve to a directory of commercial websites was not a bona fide offering of goods and services because “(a) the disputed domain name is fairly unique and specific to the Complainant; (b) there is no apparent connection between the disputed domain name and the Respondent’s website directory; and (c) there is no other apparent legitimate justification for the Respondent’s registration and use of the disputed domain name for its website”. Similarly, in Bilfinger Berger AG v. eService Finance Dept., WIPO Case No. D2003-0827, the panel stated that “… although services are offered in the form of a directory, the services do not correspond to a bona fide offering by Respondent. The domain name <bilfinger.com> is only used as a link to a generic directory. . . there is no indication that the links contained on the website are related to the Respondent or to the BILFINGER name”.

Also on point is the panel’s statement, inter alia, in Sports Holdings, Inc. v. Whois ID Theft Protection, WIPO Case No. D2006-1146, where the panel stated: “the evidence in the Complaint indicates that the website at the disputed domain name is commercial in the sense that it appears to provide links to other sites being competitors of the Complainant, and of an apparently commercial nature from which the Respondent presumably derives or intends to derive profit. Such use does not constitute a legitimate non-commercial or fair use of the disputed domain name by the Respondent within the meaning of Paragraph 4(c)(iii) of the Policy.”

Along the same lines is the decision in Fifth Third Bancorp v. Whois ID Theft Protection, WIPO Case No. D2006-1209, where the panel found that there is a strong prima facie case that the Respondent has no right or legitimate interests in the use of the disputed domain name since “in this case the Complainant has strong and longstanding goodwill in its marks, the similarity of the disputed domain name and the marks is considerable, and the domain name is being used to provide competing services in the same market sector as that in which the Complainant operates by exploiting the potential confusion created by the similarity of the marks”.

In view of the above, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name, in accordance with paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

For the purpose of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of the domain name in bad faith:

(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or

(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or

(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the holder’s website or location or of a product or service on the holder’s website or location.

As to bad faith at the time of the registration the Panel notes that in light of the well-known character of the Complainant’s trademarks, the Respondent was likely aware of the Complainant’s trademarks.

As in Gateway, Inc. v. Lorna Kang, WIPO Case No. D2003-0257, this Panel shares the view of a number of panel findings of “opportunistic bad faith” in the registration of renowned or even somewhat less famous trademarks. As stated inter alia in DHL Operations B.V v. Net Marketing Group, WIPO Case No. D2005-0868 “It is obvious that the value and goodwill, of the Complainant’s mark DHL which has an extensive world wide recognition, would have been known to the Respondent at the time of registration of the disputed domain name. The registration and use of the mark by an entity unconnected to the Complainant gives rise to the presumption of opportunistic bad faith”.

Furthermore, the Panel observes that the contested domain name points to a parking page where the Complainant’s trademarks are referenced which further indicates that the Respondent was probably aware of the Complainant’s trademarks.

The Panel, in accordance with previous decisions issued under the Policy, is of the opinion that actual knowledge of Complainant’s trademark at the time of the registration of the disputed domain name is to be considered an inference of bad faith (see Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226).

Internet users, in light of the contents of the web page linked to the domain name, may be misled on the source, sponsorship, affiliation, or endorsement of the Respondent’s website. Moreover, in all likelihood, the Respondent profits by earning pay per click revenues (see i.a Manheim Auctions Inc. v. Whois ID Theft Protection, WIPO Case No. D2006-1044, Fry’s Electronics, Inc v. Whois ID Theft Protection, WIPO Case No. D2006-1435, Barry D. Sears, Ph.D. v. YY / Yi Yanlin WIPO Case No. D2007-0286).

The Panel therefore finds paragraph 4(b)(iv) of the Policy to be applicable in this case since the Respondent has attempted (and probably succeeded) to attract Internet users to a website for commercial gain, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s services.

As stated in Sports Holdings, Inc v. Whois ID Theft Protection, WIPO Case No. D2006-1146 “the Panel notes that there has been no Response filed in these circumstances, and it is open for the Panel to infer a prima facie case of bad faith registration. The Panel also notes that the Respondent has used the present domain name in a commercial website. The evidence before the Panel indicates that the Respondent has used (or allowed the use) of the domain name for the purpose of some apparently commercial nature from which the Respondent (or a related third party) presumably derives or intends to derive revenue. This is not conduct consistent with registration and use in good faith”.

The Panel considers the incomplete information provided by the Respondent on the Whois as an additional circumstance evidencing the bad faith of the Respondent concurring with the views expressed inter alia in Steelcase Development Corporation v. Admin, Domain, WIPO Case No. D2005-1352 and Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775).

In view of the above, the Panel finds that the domain name was registered and is being used in bad faith.

 

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 <misschristiandior.com>, be transferred to the Complainant.


Luca Barbero
Sole Panelist

Dated: August 16, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0877.html

 

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