WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Elisabeth M.J. Dekkers v. Balata Inc.
Case No. D2007-1123
1. The Parties
The Complainant is Elisabeth M.J. Dekkers, Rotterdam, Netherlands, represented by Bird & Bird Solicitors, Netherlands.
The Respondent is Balata Inc., Tel Aviv, Israel.
2. The Domain Name and Registrar
The disputed domain name is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 1, 2007. On August 3, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On August 6, 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. Since he contested domain name was set to expire during the proceedings the Center communicated with eNom, who assured that the domain name would not be deleted due to lack of renewal during the UDRP proceeding. 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 August 8, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 28, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 30, 2007.
The Center appointed Knud Wallberg as the sole panelist in this matter on September 17, 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
Complainant, whose full name is Elisabeth M. J. Dekkers, is an international designer based in The Netherlands. The Complainant holds trade mark registrations of the name MARLIES DEKKERS in the Benelux countries as well as a Community Trademark both for a wide range of fashion related goods. Further the Complainant operates a number of websites under the MARLIES DEKKERS name including “”.
5. Parties’ Contentions
A. Complainant
The contested domain name is almost identical to the Complainants trade marks the only difference being the missing “s” in the end.
The Complainant also contends that the Respondent has no legitimate interest in respect of the disputed domain name. The Complainant has not authorized, licensed or otherwise allowed the Respondent to use a domain name that is confusingly similar to Complainants trade mark. Further, the Complainant contends that the respondent does not make legitimate use of the domain name. On the contrary, since the domain name diverts internet users to a website “www.” that offers products similar to those offered by the Complainant.
For this reason the Complainant also contends that the domain name is registered and used in bad faith. The domain name is thus used to deliberately attract for commercial gain internet users to the said website by creating confusion with the business of the Complainant. This claim is supported by the fact that the respondent has registered other domain names corresponding to third parties trade marks and has been involved in several proceedings under the UDRP. Finally, the fact that the contested domain name is offered for sale on the corresponding website is also an indication of registration and use in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable and on the basis of the Complaint where no Response has been submitted.
In accordance with Paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements are satisfied:
(i) the 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.
Paragraph 4(a) of the Policy states that the burden of proving that all these elements are present lies with the Complainant. At the same time, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences therefrom as it considers appropriate.
A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is in effect identical and at least confusingly similar to the trademark MARLIES DEKKERS in which the Complainant has rights.
Consequently, the Panel finds that the Complainant has proved that the condition under the Rules, paragraph 4 (a)(i) is fulfilled.
B. Rights or Legitimate Interests
The Complainant alleges that the Respondent has no rights or legitimate interests in the domain name. The Respondent has not rebutted this allegation and, based on the record of this case, it is unlikely that any such rights or interests may exist.
The Complainant states that it has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name incorporating the Complainant’s trademark or a name that is similar to this.
Further, the Panel is of the opinion that Respondent’s use of the domain name is clearly not a bona fide offering of goods or services. On the contrary, it seems clear form the content of the corresponding website, which offers goods that are in competition to the goods designed and offered by the Complainant, that Respondent intentionally utilizes, without having the right to do so, the goodwill vested in the Complainant’s trademarks.
The requirements of the Policy, paragraph 4(a)(ii), are also considered fulfilled.
C. Registered and Used in Bad Faith
Given the distinctive character of the Complainant’s trade it is inconceivable to the Panel that the Respondent was not aware of the Complainant and Complainant’s activities when registering the contested domain name. Further, the Panel finds that the Respondent could not have been unaware of the fact that it chose a name which could attract Internet users in a manner that is likely to create confusion for the users of the Internet.
This is supported by the fact that the content of the Respondent’s website, quoted under paragraph B above, indicates that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion to the Complainant’s trademark, cf. the Policy paragraph 4(b)(iv).
Finally, the Panel has noted that the Respondent has been subject to several decisions under the UDRP of a similar nature to the present one, which indicates that the Respondent is engaged in a pattern of such conduct.
The Panel concludes that the Complainant has shown that the third condition under the Policy is also fulfilled.
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, be transferred to the Complainant.
Knud Wallberg
Sole Panelist
Dated: October 1, 2007
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