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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

M. Cyril Ratel v. Jamshidkhodja Makhmudov

Case No. D2007-0958

 

1. The Parties

The Complainant is M. Cyril Ratel, Geneva, Switzerland, represented by Cabinet Dreyfus & Associйs, France.

The Respondent is Jamshidkhodja Makhmudov, New York, United States of America.

2. The Domain Name and Registrar

The disputed Domain Name <cyrilratel.com> is registered with Go Daddy Software.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 29, 2007, via e-mail and received via hard copy by the Center on July 5, 2007.

At the time of Notification of the Complaint, the Whois information erroneously confirmed that BLUE RAZOR DOMAINS, INC to be the registrar of the Domain Name <cyrilratel.com>.

On July 3, 2007, the Center transmitted by email to BLUE RAZOR DOMAINS, INC a request for registrar verification in connection with the Domain Name at issue.

On July 5, 2007, BLUE RAZOR DOMAINS, INC transmitted by email to the Center its verification response mistakenly confirming that the Respondent is listed as the registrant and providing the contact details.

Thus, 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 July 9, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 29, 2007.

However, on July 9, 2007, the registrar BLUE RAZOR DOMAINS, INC advised the Center that the Whois database contained incorrect registration information and that the Domain Name <cyrilratel.com> is in fact registered with Go Daddy Software.

Therefore, on July 11, 2007, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the Domain Name at issue. On July 11, 2007, Go Daddy Software 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 and technical contact.

On July 13, 2007, the Center advised the Parties of these developments, and confirmed that the due date for Response was July 29, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 30, 2007.

The Center appointed Andrea Jaeger-Lenz as the sole panelist in this matter on August 6, 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

As the following facts and circumstances have been alleged and satisfactorily evidenced by the Complainant, and have not been contested by the Respondent’s default, they are being considered true by the Panel.

The Complainant, M. Cyril Ratel, is a well-known watch manufacturer based in Switzerland. He has built up his business by establishing Org Watches Sarl, a Swiss company specializing in the distribution and creation of high quality watches. The Complainant has marketed his watches extensively throughout the world, inter alia, through his official website “www.cyrilratel.ch”.

The Complainant asserts to be the owner of International trademark registration No. 800413, registered March 10, 2003, and Swiss trademark registration No. 508131, registered November 25, 2002, both for the designation CYRIL RATEL.

Both trademarks are widely used by the Complainant in connection with goods of classes 14 (chronometric clock industry and instruments).

The Respondent has registered, on January 23, 2005, the Domain Name in dispute.

As recent as November 11, 2006, the website was parked at Go Daddy Software and commercial links directed Internet browsers to web pages featuring the sale of watches.

The Complainant and the Respondent had entered into a business partnership on November 23, 2004 for an unspecified period prior to the registration of the contested Domain Name. The purpose of this partnership was for the Respondent to distribute watches purchased for the Complainant and sell them in the United States of America and Kazakhstan. After the Complainant ended this contractual relationship, the Respondent registered the disputed Domain Name for himself in January 2005 without having received instructions, permission or license to that effect from the Complainant.

The facts mentioned above have been established on the basis of the Complaint and documents attached thereto in accordance with paragraph 3(b)(xv) of the Rules.

 

5. Parties’ Contentions

A. Complainant

The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are present in this case. In particular, the Complainant claims that the disputed Domain Name is identical to the Complainant’s trademarks reproducing entirely the words “Cyril Ratel”.

The Complainant further contends that the addition of the suffix “.com” does not eliminate the risk of confusion with the Complainant’s trademarks, as it is not a distinguishing feature and does not prevent Internet users from thinking there is a link between the Respondent’s Domain Name and the CYRIL RATEL trademarks. In this respect, the Complainant cites Gamefly, Inc. v. James Martin, WIPO Case No. D2006-0236 ruling that the suffix does not remove the likelihood of confusion due to the fact that it is necessary for the registration of the Domain Name.

The Complainant furthermore states that the Respondent is not a licensee nor otherwise permitted by the Complainant to use the trademarks or to register any Domain Names containing “Cyril Ratel”. The Complainant also contends that there is no longer any business relationship between the parties.

In support of this position, the Complainant contends that the Respondent must have been undoubtedly aware at the time of registration of the Domain Name of the CYRIL RATEL trademarks, due to the fact that the Complainant has a worldwide reputation and is well known on the Internet through its advertising campaign concerning the name “Cyril Ratel”. The Complainant submits advertisements published on the Internet.

The Complainant claims that the use of the identical name “Cyril Ratel” indicates that the Respondent had the Complainant’s trademarks in mind when registering the Domain Name in dispute seeking to take unfair advantage of the Complainant’s reputation.

Furthermore, the Complainant contends that the Domain Name has been used to direct Internet users to a list of commercial links for the sale of watches, the exact field of business of the Complainant and that it is constant jurisprudence of UDRP panels to consider the registration of Domain Names which are then used to operate “click-through” sites to be evidence of bad faith.

Even though the Complainant has invited the Respondent twice to transfer the Domain Name (on February 21, 2007 and on March 19, 2007) and has made requests to settle this matter amicably the Respondent still failed to react to these offers.

B. Respondent

The Respondent did not reply to the Complainant’s contentions. After the expiry of the deadline to respond, the Respondent merely sent a one-line e-mail stating that he did not understand the issue.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy directs that the Complainant must assert each of the following:

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

Paragraph 15(a) of the Rules requires the Panel to decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these rules and any rules and principles of law that it deems applicable.

If a respondent fails to participate in a proceeding under the Policy, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the Complainant (paragraph 14(a)and (b)) (Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; Microsoft Corporation v. Freak Films Oy, WIPO Case No. D2003-0109; SSL International PLC v. Mark Freeman, WIPO Case No. D2000-1080 and ALTAVISTA COMPANY v. GRANDTOTL FINANCES LIMITED et al., WIPO Case No. D2000-0848).

A. Identical or Confusingly Similar

On the facts submitted by the Complainant, the Panel concludes that the Domain Name <cyrilratel.com> is identical to the trademark CRYIL RATEL in which the Complainant has rights. The addition of the top level domain “.com” must be disregarded as simply being a necessary component of every domain name indicating the nature of the top level domain. Therefore, it does not eliminate identity or likelihood of confusion.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy, for the purposes of paragraph 4(a)(ii) the following circumstances, in particular, but without limitation, shall demonstrate rights or legitimate interests of the Respondent.

(i) the Respondent’s use of, or demonstrable 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, before any notice to the Respondent of the dispute; or

(ii) the Respondent (as an individual, business, or other organisation) has been commonly known by the Domain Name, even if the Respondent has no trademark or service marks rights; or

(iii) the Respondent is making 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 or service mark at issue.

The Complainant denies any direct connection with the Respondent and contends that the Respondent’s use of the trademark is not authorised. The Respondent has not contested these submissions.

From the evidence provided by the Complainant nothing indicates that the Respondent has any rights or interests in respect of the Domain Name according to Paragraph 4(c)(i) to (iii) of the Policy, or any other rights or legitimate interests.

Moreover, the Respondent is neither making a legitimate non-commercial or fair use of the Domain Name nor is he generally known under the Domain Name.

Due to previous interactions between the parties, the Respondent was fully aware of the Complainant’s trademark at the time of the registration of the Domain Name in dispute. The Panel finds that the Respondent selected and used the Domain Name solely in order to attract Internet users to his website by trading on the reputation of the Complainant’s trademark. The fact that the Respondent’s website contains only commercial links that direct Internet browsers to web pages featuring the sale of watches does not constitute a bona fide offering of goods (see Madonna Ciccione, p/k/a Madonna v. Dan Parisi and “madonna.com”, WIPO Case No. D2000-0847).

Therefore, the Panel finds that the Respondent lacks rights or legitimate interests in the Domain Name.

C. Registered and Used in Bad Faith

According to paragraph 4(b) of the Policy, for the purpose of paragraph 4(a)(iii) the Respondent’s intent to attempt to attract, for commercial gains, Internet users to its website, by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the website or of a product or service on the website, by using the Domain Name shall be evidence of his registration and use of the Domain Name in bad faith.

By using a domain name which is identical to a trademark it is likely that Internet users hold the proprietor of the trademark responsible for the website the Domain Name is used for or, alternatively, assume that some kind of legal or economic affiliation exists between the operator of the website under the Domain Name and the proprietor of the trademark.

The trademark CYRIL RATEL has been used continuously since 2002 by the Complainant for the marketing of high quality watches throughout the world. In November 2004 the Respondent and the Complainant engaged in a business partnership with the purpose for the Respondent to distribute watches purchased from the Complainant and sell them in the United States of America. Thus, the Respondent knew of the Complainant’s commercial activities under the trademarks CYRIL RATEL. Afterwards, the parties lost touch which each other and the business relationship ended. It may therefore be assumed that the Respondent’s motivation to register the Domain Name in dispute mainly resulted from his disappointment about the termination of the relationship. Such practice constitutes registration and use in bad faith according to the Policy (see METRO BILBAO, S.A. v. Ignacio Allende Fernбndez, WIPO Case No. D2000-0467). Thus, there can be no doubt that the Respondent was well aware of the Complainant’s trademark at the time of registration of the Domain Name in January 2005.

Considering the use of the Domain Name and the obvious identity of the Domain Name with the trademark, the Panel is also convinced that the Respondent, by using the Domain Name, intended to provoke confusion with the Complainant’s trademark and to take advantage of such confusion as to the source of its website or its affiliation in order to attract, for commercial gain, Internet users to his website. In absence of a response and in view of the evidence submitted by the Complainant the Panel holds that the Respondent registered and used the Domain Name in bad faith.

Therefore, the Panel finds that Paragraph 4(a)(iii) of the Policy is satisfied.

 

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 <cyrilratel.com> be transferred to the Complainant.

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Andrea Jaeger-Lenz
Sole Panelist

Dated: August 20, 2007