WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Cartier International, N.V. , Cartier International, B.V. v. David Lee Case No. D2009-1758 1. The Parties
The Complainant is Cartier International, N.V. of Curaçao, Netherlands Antilles; Cartier International, B.V. of Amsterdam, Netherlands, represented by Edwards Angell Palmer & Dodge, LLP, United Kingdom of Great Britain and Northern Ireland.
The Respondent is David Lee of Nanning, Guangxi, the People's Republic of China. 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 December 22, 2009. On December 23, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the disputed domain name. On December 23, 2009, eNom 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 December 30, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 19, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 20, 2010.
The Center appointed Richard Hill as the sole panelist in this matter on January 28, 2010. 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 owns the well-known trademark CARTIER.
The Respondent does not have any license or other authorization to use the Complainant's mark or to sell its products.
The Respondent is using the disputed domain name to offer for sale apparently counterfeit imitations of the Complainant's branded products. 5. Parties' Contentions A. Complainant
The Complainant alleges that it owns the registered mark CARTIER and that it is a world famous company, which engages, inter alia, in the design, manufacture and sale of some of the finest and most exquisite watches and works of jewelry throughout the world. It also owns a trademark for LOVE. The Complainant has not granted any other party the right to use within a domain name the mark CARTIER and the Respondent cannot therefore be a licensee of the Complainant nor is the Respondent otherwise authorized to use the CARTIER mark for any purpose.
According to the Complainant, the disputed domain name is confusingly similar to its marks because it contains complete and exact reproductions of both marks and the term “jewelry” is merely descriptive.
The Complainant alleges that the Respondent is using the dispute domain name to resolve to a website which offers for sale counterfeit jewelry. Several items of jewelry advertised on that website clearly and prominently feature the Complainant's trademark CARTIER, even though these items are not produced by, or with the consent of, the Complainant. The counterfeit goods on the Respondent's website are arranged according to “Collections”. The names of certain Collections are identical or similar to those used on the Complainant's website. These include “Love”, “Trinity” and “Panthere De Cartier”. It is therefore the Respondent's intention to deceive consumers into believing that the Respondent is the Complainant, or somehow connected to the Complainant.
According to the Complainant, such conduct is, in essence, intentionally using the Complainant's trademarks to deceive consumers as to the identity of the Respondent, and to promote counterfeit goods and services that are not connected with the Complainant. This cannot possibly constitute rights or legitimate interests in the disputed domain name.
Further, says the Complainant, the Respondent's acts constitute bad faith under paragraph 4(b)(iv) of the Policy as the Respondent is using the disputed domain name to intentionally attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant's CARTIER and LOVE marks as to the source, sponsorship, affiliation or endorsement of the Respondent's website at the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
It is clear that the disputed domain name is confusingly similar (in the sense of the Policy) to the Complainant's mark, because it contains the mark and merely adds the common words “love” and “jewelry” to form the domain name. See PACCAR, Inc. v. Enyart Associates and T, LLC, WIPO Case No. D2000-0289 (May 26, 2000); see also Quixtar Investments Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253 (May 29, 2000).
The Panel holds that the Complainant has satisfied this first element of the Policy. B. Rights or Legitimate Interests
The Respondent does not have any license or other authorization to use the Complainant's mark or to sell its products. The Respondent is using the disputed domain name to offer for sale counterfeit imitations of the Complainant's branded products. This is not a legitimate use of the domain name.
Where a party has registered and used a domain name in bad faith (see the discussion below), that party cannot be found to have made a bona fide offering of goods and services, see The PNC Financial Services Group, Inc. and PNC Bank, N.A. v. Azra Khan,WIPO Case No. D2002-0701 (September 6, 2002); See also AltaVista Company v. Saeid Yomtobian,WIPO Case No. D2000-0937 (October 13, 2000). Thus, it cannot be said that the Respondent has rights or legitimate interests in the disputed domain name.
The Panel holds that the Complainant has satisfied its burden of proof under this element of the Policy. C. Registered and Used in Bad Faith
From the present circumstances, it is clear that the Respondent was aware of the Complainant's marks when he registered and started using the disputed domain name, because inter alia the domain name contains the Complainant's mark and the website offers to sell counterfeit imitations of the Complainant's products.
Thus the Respondent's use of the disputed domain name is clearly not bona fida. This indicates that the Respondent has registered and is using the disputed domain name to take advantage of the confusing similarity between the disputed domain name and the Complainant's mark in order to profit from the goodwill associated with the mark in bad faith under paragraph 4(b)(iv) of the Policy. See PRL USA Holdings, Inc. v. Ron Lee,WIPO Case No. D2009-0269 (June 29, 2009); see also Utensilerie Associate S.p.A. v. C & M, WIPO Case No. D2003-0159 (April 22, 2003). 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.
Richard Hill
Sole Panelist
Dated: January 29, 2010
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