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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Roberto Cavalli S.p.A., IGA Finance B.V. v. Juan Carlos Delgado Mendez

Case No. D2009-0734

1. The Parties

The Complainants are Roberto Cavalli S.p.A. of Milan, Italy and IGA Finance B.V. of Amsterdam, the Netherlands, represented by Studio Legale Jacobacci, Sterpi, Francetti, Regoli, de Haas & Associati, Italy.

The Respondent is Juan Carlos Delgado Mendez of Puebla, Mexico.

2. The Domain Names and Registrar

The disputed domain name <vodkarobertocavalli.com> is registered with Fast Domain Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 4, 2009. On June 4, 2009, the Center transmitted by email to Fast Domain, Inc. a request for registrar verification in connection with the disputed domain name. On June 6, 2009 and June 9, 2009, Fast Domain Inc 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") or ("UDRP"), 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 19, 2009. In accordance with the Rules, Paragraph 5(a), the due date for Response is July 9, 2009. The Respondent did not submit any response. Accordingly the Center notified the Respondent`s default on July 13, 2009.

On July 13, 2009, the Center received an email communication from one Mr. A. Cruz, which was acknowledged by the Center on July 14, 2009.

An additional communication was received from Mr. Cruz on July 14, 2009 and was acknowledged on July 15, 2009. On July 15, 2009 the Center received an email communication from the Complainant which was acknowledged on the same day.

The Center appointed Clive Duncan Thorne as the Sole Panelist in this matter on July 22, 2009. 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

According to the facts set out in the Complaint, the Complainant Roberto Cavalli S.p.A. is the main company of the Cavalli Group, a transnational group which manufactures and sells throughout the world the creations of the world famous Italian designer Mr. Roberto Cavalli. Examples of these creations are set out in the publicity material exhibited as Document 1 to the Complaint.

From the original fields of clothing and fashion, the creations of Mr. Roberto Cavalli have extended to a wider range of products and services, including alcoholic beverages and, particularly, vodka which is produced in Italy and sold internationally.

The second Complainant IGA Finance B.V. is, since 1997, a majority shareholder of Roberto Cavalli S.p.A. and is the owner of the trademarks ROBERTO CAVALLI throughout the world. These companies are collectively referred to as the Complainant.

The Respondent is Mr. Juan Carlos Delgado Mendez of Puebla, Mexico. Beyond the evidence of the Respondent`s registration of the disputed domain name, nothing appears to be known about the Respondent.

The first Complainant Roberto Cavalli S.p.A. was established in 1978. Its original main activity was the manufacturing and marketing of luxury clothing and accessories for men and women. The trademarks, comprising the word "Cavalli" derive from the name of the world famous Italian fashion designer Mr. Roberto Cavalli who started his career in the late 1950s. His name started becoming internationally recognised when Mr. Cavalli exhibited his first collection in the Palazzo Pitti fashion show in Florence, Italy in 1972. The fame of the Complainant`s trademarks has nowadays grown to such an extent that scholarly books have been published on the designer as the creator of a new style of fashion. The public recognition of the name and trademark ROBERTO CAVALLI is evidenced by coverage in the international media, samples of which are set out in Document 1 exhibited to the Complaint.

The Complainant has, since 2006, also sold a vodka called "Roberto Cavalli" or "Cavalli / Cavalli Selection" for which several trademark applications have been filed and several registrations obtained in Class 33. At Document 2 to the Complaint is exhibited publicity material showing the Roberto Cavalli vodka brand in a distinctive shaped bottle.

The Complainant owns a large number of trademarks throughout the world for ROBERTO CAVALLI and CAVALLI. A long schedule of these is exhibited as Document 3 to the Complaint.

For the purposes of this Complaint, the Complainant relies upon three registrations, evidence of which are exhibited at Documents 5 to 7 to the Complaint. These are as follows:

European Community Trademark Registration No. 752196 for ROBERTO CAVALLI;

International Trademark Registration No. 912911 for CAVALLI;

International Trademark Registration No. 958293 for CAVALLI SELECTION.

The registrations are in Class 33 which includes spirits. The marks are prima facie valid and subsisting.

The Complainant submits that it cannot seriously be disputed that the Complainant is and has been the owner of the trademarks ROBERTO CAVALLI and CAVALLI, inter alia, for vodka for several years. It submits that it is a famous trademark as is shown by a Google search under "Robert Cavalli".

In the absence of a Response the Panel accepts the above facts as true.

5. Parties` Contentions

A. Complainant

The Complainant contends that:

(a) The disputed domain name includes "the identical trademark ROBERTO CAVALLI owned by the Complainant".

(b) The disputed domain name is confusingly similar to the mark ROBERTO CAVALLI particularly when there is vodka sold by the Cavalli Group under the trademarks ROBERTO CAVALLI and CAVALLI.

(c) The Respondent has no rights or legitimate interests in the disputed domain name:

(i) The Respondent has not been authorised by the Complainant to register nor to use the domain name.

(ii) The Respondent is not associated in any way with the Complainant nor its distribution network.

(iii) The Respondent has never been commonly known in the normal course of business by the trademark, trade name or domain name ROBERT CAVALLI.

(d) The Respondent uses the disputed domain name in bad faith. This is supported by the fact that the domain name reproduces material taken from one of the Complainant`s websites.

B. Respondent

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

The Panel notes for the record that the communications received from a Mr. Cruz do not purport to act as a Response. They concern an alleged attempt to join the Complainant`s network of distributors. In any event, the content has been noted and does not affect the below decision.

6. Discussion and Findings

A. Identical or confusingly similar

The Panel finds based upon the above evidence of registered marks that the Complainant has valid trademark registrations for both ROBERTO CAVALLI and CAVALLI.

The disputed domain name is identical to the mark ROBERT CAVALLI save for the word "vodka" appearing before Robert Cavalli. Since the word "vodka" is a noun, descriptive of a type of alcoholic spirit, the disputed domain name is simply a combination of the noun "vodka" and the mark ROBERTO CAVALLI. In these circumstances the Panel finds that the disputed domain name is confusingly similar to the Complainant`s registered mark ROBERTO CAVALLI.

B. Rights or Legitimate Interests

The Complainant submits that the Respondent has no rights or legitimate interests in the disputed domain name. It submits that the Respondent has not been authorised by the Complainant to register nor to use the domain name. It submits the Respondent is not associated in any way with the Complainant or its distribution network. It submits that there is no evidence that the Respondent has ever been commonly known in the normal course of business by the trademark, trade name or domain name ROBERTO CAVALLI.

The Panel notes that there is, in the absence of a Response no evidence to the contrary submitted by the Respondent justifying why it may have rights or legitimate interests in the disputed domain name. In the circumstances therefore the Panel finds that the Complainant has proved this element and that the Respondent has no rights or legitimate interests in the disputed domain name.

C. The domain name was registered and is being used in bad faith

The Complainant submits that the Respondent must have been aware of the trade names and trademarks ROBERTO CAVALLI and that as a result the registration may only have occurred in bad faith. It submits that the mark ROBERTO CAVALLI is a famous trademark.

There are authorities referred to by the Complainant in the Complaint including Banca Sella s.p.a v. Mr. Paolo Parente, WIPO Case No. D2000-1157 and Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163, in which previous panels have found that the domain names then in dispute are so "obviously connected" with a well-known product that their use by someone with no connection to the product suggests opportunistic bad faith.

The Panel accepts this submission and finds that the Respondent knew of or should have known of the Complainant`s trademark at the time it registered the disputed domain name. In particular there was no apparent reason why, in the absence of evidence to the contrary, the Respondent should have chosen Roberto Cavalli unless he was aware of the Complainant`s trademark rights.

The Panel is supported in this view by the evidence contained in Document 8 exhibited to the Complaint which reproduces material taken from one of the Respondent`s websites which is apparently copyright material owned by the Complainant. The Respondent`s website refers to Vodka Roberto Cavalli and reproduces material taken from the Complainant`s website. In the Panel`s view this is further evidence of bad faith. Accordingly the Panel finds that the disputed domain name was registered and is being used in bad faith.

Having found for the Complainant in respect of each of the above elements, the Panel finds that the Complainant has succeeded in proving its Complaint.

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 <vodkarobertocavalli.com> be transferred to the Complainant.


Clive Duncan Thorne
Sole Panelist

Dated: August 5, 2009

 

Источник информации: https://internet-law.ru/intlaw/udrp/2009/d2009-0734.html

 

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