WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Calvin Klein Trademark Trust and Calvin Klein, Inc. v. Rhythm
Case No. D2001-1295
1. The Parties
The Complainants are Calvin Klein Trademark Trust, Wilmington, Delaware and Calvin Klein, Inc., New York, New York U.S.A.
The Respondent is Rhythm, Dearborn Height, Michigan U.S.A.
2. The Domain Name and Registrar
The Domain Name is .
The Registrar is BulkR, Inc.
3. Procedural History
The Complaint was received by WIPO by e-mail on October 24, 2001, and in hardcopy form on October 30, 2001. WIPO verified that the Complaint satisfies the formal requirements of the Policy, the Rules and the Supplemental Rules and that payment was properly made. The Administrative Panel ("the Panel") is satisfied that this is the case.
The Complaint was properly notified in accordance with the Rules, paragraph 2(a). The Registrar confirmed that ("the Domain Name") was registered through BulkR and that Rhythm is the current registrant. The Registrar further confirmed that the Policy is applicable to the Domain Name.
On November 8, 2001, WIPO notified the Respondent of the Complaint as required and informed the Respondent, inter alia, that the last day for sending its Response to the Complainant and to WIPO was November 28, 2001. No Response was received. WIPO issued a Default Notice to the Respondent on November 30, 2001. No submission or communication from Respondent was received.
The Panel was properly constituted. The undersigned panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
No further submissions were received by WIPO or the Panel. The projected date for the issuance of the Panel�s Decision was December 28, 2001.
4. Factual Background
The following matters are set out in the Complaint and the Respondent has not disputed them.
The Complainants, Calvin Klein Trademark Trust and Calvin Klein, Inc. (hereinafter "Complainant"), are respectively the record owner and the beneficial owner of the CALVIN KLEIN trademarks (referred to hereinafter as the "CALVIN KLEIN Marks"). The Complainant is involved in the apparel business and designs, manufactures, markets and sells merchandise for men, women and children including watches, shoes, accessories, underwear, jeans, cosmetics, home furnishings, sweatshirts and many other apparel items.
As early as 1986, the Complainant adopted and began to use the CALVIN KLEIN Marks to identify its goods in the United States and throughout the world. The Complainant has used the CALVIN KLEIN Marks in connection with the sale and marketing of its goods in over 190 countries. The Complainant has over 50 trademark registrations with the United States Patent and Trademark Office for the CALVIN KLEIN Marks.
In June 1997, the Complainant registered the domain name with Network Solutions, Inc.
Complainant has spent millions of dollars to promote its CALVIN KLEIN Marks and the products identified by the CALVIN KLEIN Marks around the world. Complainant has established proprietary rights in the CALVIN KLEIN Marks, which have become famous.
The Domain Name was registered in August 2000, three years after the registration of Complainant's domain name and over 13 years after Complainant began using the CALVIN KLEIN Marks.
5. Parties� Contentions
A. Complainant
The Complainant relies upon the above factual background and contends, inter alia, that the three elements of paragraph 4(a) of the Policy are established.
The Complainant contends that the Domain Name is confusingly similar to the CALVIN KLEIN Marks and the domain name in which the Complainant has rights.
The Complainant further contends that it holds at least four separate trademarks that it uses in connection with the promotion and sale of its watches. The Complainant argues that includes the Complainant�s CALVIN KLEIN Marks but also includes a product, namely watches, which are produced under the CALVIN KLEIN Marks. The Complainant contends that the use of the domain name by the Respondent is likely to confuse consumers, causing them to believe, erroneously, that is an authorized website through which they can purchase products manufactured or sold by Complainant.
The Complainant contends that the evidence supports the conclusion that the Respondent registered the Domain Name in bad faith and is using it in bad faith. Specifically, the Complainant argues that the Respondent registered or acquired the Domain Name for the primary purpose of extracting compensation from the Complainant for use or ownership of the Domain Name.
In support of its argument, the Complainant contends that Respondent is not currently using, has not used and has no plans for use of the Domain Name in connection with the sale of any goods or services. Additionally, the Complainant argues that Respondent has never been known by the Domain Name or by the name Calvin Klein and thus has no legitimate interest in the Domain Name.
The Complainant further contends that in July of 2001, Complainant sent a letter to Respondent by certified mail informing Respondent that Respondent was infringing upon Complainant�s rights. Complainant states also that it sent additional follow up letters to Respondent on August 2, 2001, and August 22, 2001. Complainant has never received a response to those letters.
The Complainant requests that the Domain Name be transferred to the Complainant.
B. Respondent
The Respondent has not responded.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that
(i) The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interest in respect of the Domain Name; and
(iii) The Domain Name has been registered and is being used in bad faith.
The unrebutted contentions in the Complaint and the evidence annexed to the Complaint support the Complainant�s contentions.
Confusing similarity
Based on the evidence and contentions described above, the Panel finds that the Domain Name is confusingly similar to the CALVIN KLEIN Marks and the domain name in which Complainant has rights.
Rights or legitimate interest of the Respondent
The Panel agrees with the contentions of the Complainant that the Respondent has no rights or legitimate interests in the Domain Name. The Respondent had an opportunity to demonstrate such rights or legitimate interests but did not do so.
Bad Faith
Again, the Panel accepts the contentions of the Complainant. The evidence cited by Complainant suggests that the Respondent registered the Domain Name in bad faith and is using the Domain Name in bad faith. The Panel finds that the Domain Name was registered and is being used in bad faith.
7. Decision
Pursuant to Paragraph 4(i) of the Policy and Paragraph 15 of the Rules, the Panel having found that the Domain Name is confusingly similar to a trademarks and service marks in which the Complainant has rights; that the Respondent has no rights or legitimate interests in the Domain Name; and that the Domain Name was registered and is being used in bad faith, the Complaint is granted. The Panel directs that the Domain Name be transferred to the Complainant.
Ira S. Sacks
Sole Panelist
Dated: December 28, 2001
Full & Egal Universal Law Academy