WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION BACCARAT SA v. John B Begloff Case No. D2010-0306 1. The Parties
The Complainant is BACCARAT SA of Baccarat, France, represented by MEYER & Partenaires, France.
The Respondent is John B Begloff of Moscow, Russian Federation. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Regional Network Information Center, JSC dba RU-CENTER (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 26, 2010. On February 26, 2010, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 1, 2010, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Registrar also informed the Center that the language of the registration agreement in respect of the Domain Name is Russian. Therefore, on March 9, 2010 the Center invited the Parties' comments in respect of the language of the proceedings. On March 11, 2010, Complainant responded to this notification by filing an amended complaint and requesting that the proceedings be held in English. Respondent filed no comments within the prescribed time limit.
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 March 16, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 5, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 7, 2010.
The Center appointed Assen Alexiev as the sole panelist in this matter on April 19, 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.
The Panel notes that the language of the Registration agreement in respect of the Domain Name is Russian. Complainant has requested that English be the language of the proceeding, contending that Respondent is well versed in English, while his knowledge of Russian is uncertain. In support of its request, Complainant has provided the arguments that the Domain Name contains an English word, that Respondent has also registered other domain names in English, and that Respondent has deactivated the website at the Domain Name right after the filing of the Complaint (written in English) with the Center. Complainant has also stated that the translation of the Complaint in Russian would cause an unnecessary burden on it. Respondent has filed no comments to the Center in respect of the language of the administrative proceeding. The Panel is prepared to accept Complainant's arguments, especially in the light of Respondent's lack of reaction on the issue. The Center has at all times communicated to Respondent in both English and Russian, and it appears that no unfairness would be caused to either party if English is chosen as the language of the proceedings. Therefore, in exercise of its powers under Rules, paragraphs 10 and 11, the Panel decides English to be the language of this administrative proceeding, and all available Russian language evidence to be taken into account. 4. Factual Background
Complainant is the holder of the following BACCARAT trademarks around the world:
- International trademark BACCARAT No.959025 dated September 7, 2007 registered in international classes 35, 36, 38, 39, 41, 43, 44, covering, among others, the territory of the Russian Federation;
- International trademark BACCARAT (figurative) No.592210 dated October 15, 1992 registered in international class 3, covering, among others, the territory of the Russian Federation;
- International trademark BACCARAT (figurative) No.573699 dated July 18, 1991 registered in international classes 8 and 21, covering, among others, the territory of the Russian Federation;
- International trademark BACCARAT (figurative) No.571155 dated June 10, 1991 registered in international classes 9 and 14, covering, among others, the territory of the Russian Federation;
- International trademark BACCARAT (figurative) No.433949 dated November 10, 1977 registered in international class 21, covering, among others, the territory of the Russian Federation;
- International trademark BACCARAT (figurative) No.889279 dated February 3, 2006 registered in international classes 43 and 44, covering, among others, the territory of the Russian Federation;
- International trademark BACCARAT No.905393 dated March 22, 2006 registered in international classes 35, 36, 41, 43, and 44, covering, among others, the territory of the Russian Federation; and
- French trademark registration MAISON BACCARAT filed on December 15, 2005 and registered under No.05 3 398 047 in classes 35, 43 and 44.
Complainant has registered several ccTLDs and gTLDs, including the following:
- , registered on July 5, 2004;
- , registered on December 13, 2004;
- , registered on January 3, 2005;
- , registered on January 26, 2004;
- , registered on January 7, 1997;
- , registered on March 2, 2008; and
- , registered on March 2, 2008.
All these domain names point to Complainant's web portal at . 5. Parties' Contentions A. Complainant
Complainant, formerly known as the “Compagnie Des Cristalleries De Baccarat” has been a manufacturer of crystal ware since 1764. On December 19, 1994, the company changed its trade name to BACCARAT SA.
Complainant's products have won many awards worldwide. It has been the supplier to a great majority of foreign Courts and heads of States for more than 200 years. It has a strong background in Russia, where thousands of its products were bought by the Tsars before the Soviet revolution. A complete range of BACCARAT glasses is still named “Tsar” as a mark of the strong relationship between Complainant and Russia. In 2001, Complainant opened a showroom in Russia, and in 2008, the Baccarat House Moscow was opened.
According to Complainant, the Domain Name is confusingly similar to Complainant's BACCARAT trademark. The verbal element of the BACCARAT trademark is entirely reproduced in the Domain Name, which combines it with the word “HOUSE” (in French “MAISON”). This combination does not eliminate the risk of confusion with Complainant's trademark, which is the only distinctive element of the Domain Name. To the opposite, the Domain Name refers to the showrooms of the Complainant in Paris and Moscow, and to Complainant's business in general.
In Complainant's submission, Respondent has no rights or legitimate interests in the Domain Name. Respondent is not related in any way to Complainant's business; he is not known by the Domain Name and has no trademark or trade name rights in it. Complainant has not granted any license or authorization to Respondent to use or to apply for the registration of the Domain Name. Respondent is not making a fair or non-commercial use of the Domain Name. Rather, Respondent is trying to confuse internet users which may legitimately believe that the website operated under the Domain Name is operated by Complainant or under its authorization.
Respondent had registered and used the Domain Name in bad faith. He registered the Domain Name having Complainant's trademark in mind. The Domain Name is linked to a webpage containing a strict reproduction of Complainant's figurative trademark with only minor changes. At the time of the registration of the Domain Name, it was used to operate a web page in Russian containing a picture of a product manufactured and sold by Complainant - a vase from its “Tornado” collection. Considering the strong reputation of Complainant and the behavior of Respondent, it appears that the latter has used the Domain Name in bad faith, in an attempt to take unfair advantage of Complainant's trademark by offering products similar and complementary to Complainant's products. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Pursuant to Policy, paragraph 4(a), Complainant must prove each of the following to justify the transfer of the Domain Name:
(i) That the Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) That Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) That the Respondent has registered and is using the Domain Name in bad faith.
By Rules, paragraph 5(b)(i), it is expected of a respondent to: “[r]espond specifically to the statements and allegations contained in the complaint and include any and all bases for the Respondent (domain name holder) to retain registration and use of the disputed domain name…”
In this case, the Center has employed the required measures to achieve actual notice of the Complaint to Respondent, in compliance with Rules, paragraph 2(a), and the Respondents were given a fair opportunity to present their cases.
In the event of a default, under Rules, paragraph (14)(b): “…the Panel shall draw such inferences therefrom as it considers appropriate.”
As stated by the Panel in Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques,WIPO Case No. D2000-0004: “ Here, the potential evidence of good faith registration and use was in respondent's control. Respondent's failure to present any such evidence or to deny complainant's allegations allows an inference that the evidence would not have been favorable to respondent.” As stated by the Panel in Viacom International Inc. v. Ir Suryani,WIPO Case No. D2001-1443: “Since the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, this Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant. In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.”
In this administrative proceeding, Respondent has chosen not to submit a Response. His default entitles the Panel to conclude that Respondent has no arguments or evidence to rebut the assertions of Complainant. The Panel has to take his decision on the basis of the statements and documents before it and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar
Complainant has provided evidence and has thus established its rights in the BACCARAT trademarks, registered for the territories of various jurisdictions around the world, including the Russian Federation.
It is a common practice under the Policy to disregard gTLDs such as the “.net” section of domain names for the purposes of the comparison under the Policy, paragraph 4(a)(i). Therefore, the relevant part of the Domain Name is its “baccarathouse” element. Its first part – “baccarat” - is identical to Complainant's BACCARAT trademarks, and the second part – “house” – is a generic word of no distinctiveness in this case. In the Panel's view, the combination is dominated by the “baccarat” element, which makes it confusingly similar to Complainant's trademarks.
On these grounds, the Panel finds that the Domain Name is confusingly similar to trademarks in which Complainant has rights. B. Rights or Legitimate Interests
Complainant claims that Respondent has no rights or legitimate interests in the Domain Name, stating various arguments in this regard. Thus, Complainant establishes a prima facie case under Policy, paragraph 4(a)(ii).
It is well established that once a complainant makes out a prima facie case that the respondent has no rights or legitimate interests in a domain name, the burden shifts to the respondent to rebut the showing by providing evidence to the contrary.
Respondent has chosen not to present to the Panel any allegations or documents in his defense despite the burden under the Rules, paragraph 5(b)(i) and 5(b)(ix) or the consequences that a panel may extract from the fact of a default (Rules, paragraph 14). If Respondent had any justification for registering or using the Domain Name, he could have provided it. In particular, Respondent has not contended that any of the circumstances described in Policy, paragraph 4(c) — or any other circumstance — is present in their favor.
The only information available about Respondent is the WhoIs information, provided by the Registrar, and the content of the website, associated to the Domain Name.
The WhoIs information contains no evidence of rights or legitimate interests of Respondent in the Domain Name. Respondent makes no claims for having rights or legitimate interests in respect of the Domain Name and provides no explanation whatsoever for its registration and use. As submitted by Complainant and not denied by Respondent, the website associated to the Domain Name displays a variation of Complainant's trademark and initially showed one of Complainant's products, and then offered products similar and complementary to Complainant's products. This makes it obvious that Respondent had Complainant's trademarks in mind at the time of registration of the Domain Name.
In the Panel's view, the above circumstances appear to confirm Complainant's prima facie case. In the lack of any evidence or allegations to the contrary, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name within the meaning of the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith
For the purposes of Policy, paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that the holder has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the holder's documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder's website or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on the holder's website or location.
In the present case, the Domain Name is confusingly similar to Complainant's BACCARAT trademarks, and Respondent has been found to have no rights or legitimate interests in it, while positively being aware of Complainant and of the significant commercial value of its trademarks. Nevertheless, Respondent appears to have used the Domain Name for a website containing firstly one of Complainant's products, and then offered products similar and complementary to Complainant's products. Such conduct illegitimately exploits with a commercial purpose the reputation of Complainant and its trademarks.
Taking into account all above, the Panel is prepared to accept that the Domain Name has been registered and used by Respondent in an attempt for commercial gain to attract Internet users to the Domain Name by creating a false association with Complainant and its trademarks. These actions amount to bad faith registration and use of the Domain Name under the Policy. 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 Complainant.
Assen Alexiev
Sole Panelist
Dated: May 10, 2010
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