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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Christian Dior Couture v. MsDior, Inc.

Case No. D2008-0068

 

1. The Parties

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

The Respondent is MsDior, Inc., New York, NewYork, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <mistressdior.com> is registered with Network Solutions, LLC.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 17, 2008. On January 17, 2008, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name at issue. On January 17, 2008, Network Solutions, LLC 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 issued an e-mail concerning a Notice of Change of Registrant Information on January 24, 2008. The Complainant filed an amendment to the Complaint on January 25, 2008, amending the Respondent’s contact details. The Center verified that the Complaint, together with the amendment to 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 January 30, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was February 19, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 21, 2008.

The Center appointed Andrew Brown as the sole panelist in this matter on February 29, 2008. 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 of the trademarks DIOR and MISS DIOR in relation to clothing, perfumes and accessories.

The Complainant owns worldwide a very substantial number of registrations for the trademark DIOR in international trademark classes 3 (perfumes), 14 (jewellery), 18 (leather goods), and 25 (clothing and footwear). In Canada the Complainant owns the registration for the trademark MISS DIOR in class 25 for clothing, including lingerie. In the United States, the Complainant owns the registered trademark for DIOR in class 18 for leather goods. The exhibits to the complaint also show that the company Christian Dior Perfumes Corp owns the trademark MISS DIOR for perfumes in class 3 in the United States. The relationship between this company and the Complainant has not been explained but it appears that they are related companies.

The Respondent is located and has registered its domain name, in the United States of America.

The Respondent registered the domain name <mistressdior.com> on March 29, 2005.

 

5. Parties’ Contentions

A. Complainant

The Complainant states that the disputed domain name is nearly identical to the DIOR and MISS DIOR trademarks registered by the Complainant all over the world. The Complainant annexed to its Complaint a schedule containing its worldwide trademark registrations. The Complainant also claims that Christian Dior Couture is very well known all over the world for its goods sold under the trademarks DIOR and CHRISTIAN DIOR.

The Complainant states that the word “mistress”, which appears first in the disputed domain name, is a common word and consumers will only see the word “Dior” and not the word “Mistress”. It is asserted that consumers seeing the disputed domain name may think that “Mistress Dior” is a new trademark from Christian Dior Couture.

The Complainant also asserts that MsDior, Inc. has no trademark rights or other intellectual property rights to Mistress Dior or Dior and that the Respondent is not commonly known under the domain name Mistress Dior. The Complainant states that no licence, contract or other authorisation was granted to MsDior, Inc. to authorise it to register and utilise the disputed domain name.

The Complainant states that the disputed domain name is active and opens to an erotic website which features the trademark DIOR in large letters. The Complainant annexes to its Complaint screen shots from “www.mistressdior.com” including shots of “Mistress Dior” in leather goods as well as screen shots of hosiery and leather footwear. The Complainant further asserts that “Mistress Dior” “proposes” (presumably meaning carrying out) erotic acts with feet, boots, sneakers or nylons. The Complainant also sells similar goods under its well known DIOR marks.

The Respondent’s website refers to a “stunning sensual yet sadistic lifestyle Domina from Germany” now being available for private appointments. The model who is referred to as Mistress Dior and Ms Dior appears to be offering dominatrix and foot fetish services.

The Complainant states that MsDior is not the true name of the woman depicted on the website and that the choice of Mistress Dior/MsDior shows that the Respondent is seeking to use the “notoriety” of the Complainant and its very well known trademark DIOR. The Complainant states that, as it is very well known all over the world, it is not possible for the Respondent to not know of its existence and the existence of its trademarks.

The Complainant also states that the company Christian Dior Couture and its sister company, Christian Dior Perfumes Corp, also use the trademark MISS DIOR and that “Mistress Dior” is very similar.

B. Respondent

No response was filed by the Respondent. However, after the due date to file a Response, the Respondent sent two emails to the WIPO Case Manager.

In the first email, dated March 3, 2008, the Respondent’s representative told the Case Manager that it has “no interest in keeping this domain name in question”.

On March 5, 2008, the Respondent sent a second email to the Case Manager in which the Respondent’s representative, Britta Dubs, stated that she had “contact[ed] the complainant personally, because I truly want to resolve this absurd matter by handing over the domain name in question, but have not yet gotten any response.”

The Respondent has not, however, sought to file a Response to the Complaint. Accordingly, the Panel proceeds on the basis that no Response has been filed.

 

6. Discussion and Findings

Under the UDRP Policy, at paragraph 4(a), the Complainant must prove that each of the following three elements are present:

(i) The Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) The domain name has been registered and is being used in bad faith .

The Rules of the UDRP, paragraph 14, provides that “where a party is in default of the Rules, the Panel shall proceed to a decision on the Complaint”. Paragraph 15(a) of the Rules prescribes that “a Panel shall decide a Complaint on the basis of the statements and document submitted ….”

A. Identical or Confusingly Similar

The first issue to be determined is whether the domain name <mistressdior.com> is identical or confusingly similar to the Complainant’s trademark or service mark. The content of the website is irrelevant in the finding of confusing similarity (see Arthur Guinness Son & Co (Dublin) Limited v. Dejan Macesic WIPO Case No. D2000-1698.)

The Panel finds that the Complainant has provided clear evidence of its rights in the registered trademarks DIOR and MISS DIOR in a considerable number of jurisdictions, including in the United States of America, where the Respondent is located.

The Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademarks DIOR and MISS DIOR. The DIOR and MISS DIOR trademarks have been the registered trademarks of the Complainant in the United States since the 1950s. The Respondent’s domain name encompasses the marks DIOR and MISS DIOR in its entirety. The UDRP’s decisions have recognised that where a trademark is incorporated in its entirety into a disputed domain name, then that can be sufficient to establish that the domain is identical or confusingly similar to a registered trademark (see Koninklijke Philips Electronics N. V. v. Selling Domains Best, WIPO Case No. D2002-1041; Direct Line Group Ltd, Direct Line Insurance plc, Direct Line Financial Services Ltd, Direct Line Life Insurance Company Ltd, Direct Line Unit Trusts Ltd, Direct Line Group Services Ltd v. Purge I. T., Purge I.T. Ltd. WIPO Case No. D2000-0583; Aventis Pharmaceuticals Inc., Aventis Pharma SA v. Goldie Fishero, WIPO Case No. D2004-0094; Philip Morris Incorporated v. Alex Tsypkin, WIPO Case No. D2002-0946).

B. Rights or Legitimate Interests

The Complainant is required to show that the Respondent has no rights or legitimate interest in the domain name at issue. Paragraph 4(c) provides the grounds on which, “if found by the Panel to be proved based on its evaluation of all the evidence presented, shall demonstrate [the Respondent] rights or legitimate interest to the domain name”.

The Respondent has not filed any Response, and, in that way, has chosen not to put up any showing as to rights or legitimate interest under the Policy. The Panel acknowledges the receipt of the Respondent’s two emails. The emails did not, however, assert any rights to the disputed domain name. Accordingly, under the Rules of the UDRP, paragraph 14, the Panel must proceed to its decision based on the filed Complaint.

The Complainant asserts that MsDior, Inc. has no trademark rights to “Mistress Dior” or “Dior” and has not been licensed by it to use the registered trademarks DIOR or MISS DIOR in its domain name.

In light of the evidence provided by the Complainant, and the Respondent’s failure to file any Response challenging the Complaint, the Panel finds that the Respondent has no rights or legitimate interest in the disputed domain name.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets out the non-exhaustive grounds for what constitutes bad faith. The Panel finds that sub-paragraph 4(b)(iv) is relevant to this Complaint.

“(i) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product or service on your web site or location.”

The Panel is satisfied from the Complainant’s evidence that DIOR and MISS DIOR are well known marks for women’s clothing, accessories, and perfume. The Complainant’s evidence demonstrate that the marks DIOR and MISS DIOR have been registered and used since the 1950s in a number of jurisdictions particularly in the United States of America.

The Panel is satisfied that the Respondent plainly registered and intended to register the domain name to use and adopt the Complainant’s well-known DIOR and MISS DIOR trademarks.

The Panel finds that the Respondent has attempted to attract Internet users to its web site for commercial gain by creating a likelihood of confusion with the Complainant’s well known marks. Members of the public seeing <mistressdior.com> will likely believe as a matter of initial interest confusion that the web site is connected with the Complainant or sells the Complainant’s goods. That will induce consumers to visit the Respondent’s web site. There is a clear likelihood of confusion as to the source, sponsorship, affiliation or endorsement created by the use of the Complainant’s registered trademarks or marks similar to the Complainant’s trademarks in the Respondent’s domain name.

Accordingly, the Respondent’s action of registering and using the domain name <mistressdior.com> falls squarely within paragraph 4(b)(iv) of the Policy.

The Panel further finds that, as the grounds of bad faith are not exhaustive, other factors can be taken into account when considering whether the mark has been registered and used in bad faith. The Panel finds that as the Respondent’s domain name (which is confusingly similar to the Complainant’s trademarks) has been registered and used in connection with erotic offerings, that this clearly tarnishes and/or dilutes the Complainant’s mark and thus constitutes registration and use in bad faith (see Singapore Airlines Limited v. Robert Nielson (trading as Pacific International Distributors, WIPO Case No. D2000-0644 and Nokia Corporation v. Nokiagirls.com aka IBCC, WIPO Case No. D2000-0102).

 

7. Decision

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


Andrew Brown QC
Sole Panelist

Dated: March 14, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0068.html

 

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