The Complainant is Baccarat SA of Baccarat, France, represented by MEYER & Partenaires, France.
The Respondent is Ichiro Watanabe of Osaka, Japan. 2. The Domain Name and Registrar
The disputed domain name is registered with Melbourne IT Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 7, 2010. On September 7, 2010, the Center transmitted by email to Melbourne IT Ltd. a request for registrar verification in connection with the disputed domain name. On September 13, 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 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 September 14, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 4, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 5, 2010.
The Center appointed Erica Aoki as the sole panelist in this matter on October 12, 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 language of the administrative proceeding is English, the language of the registration agreement. 4. Factual Background
The Complainant Baccarat SA (referred as to “Complainant”), formerly known as Compagnie des Cristalleries de Baccarat, is a worldwide famous manufacturer of crystal wares since 1764.
The Complainant’s trademark BACCARAT is one of the oldest trademarks in the world and its first trademark registration is dated December 29, 1860. This trademark is still in force and was lastly renewed on April 4, 2009.
The Complainant owns more than 700 trademarks across the world and in Japan, it owns 29 trademarks.
The disputed domain name was registered in July 2010.
When the Complainant became aware that the Respondent had registered the domain name , the Complainant decided to file the present complaint. 5. Parties’ Contentions A. Complainant
The Complainant claims that it has been a worldwide famous manufacturer of crystal wares since 1764, and that it has been the supplier to a great majority of foreign Courts and heads of States for more than 200 years.
The Complainant's first trademark registration, in France, is dated December 29, 1860 for BACCARAT and device (in French: "Vignette Baccarat") in class 21 (articles made of crystal glass). This trademark is still in force and was lastly renewed on April 4, 2009.
The Complainant is the rights holder of more than 700 trademarks across the world, with 29 in Japan.
Apart from its registered trademarks, the Complainant has registered several domain names to promote its reputation on the Internet:
The Complainant has maintained a presence since 1984 in Japan through its subsidiary in Tokyo. The Complainant contends that its relationship with Japan dates back to the late 19th century with two prestigious commissions for the Harumi House and the Emperor of Japan.
The Complainant’s products are today available in 45 points of sale throughout Japan, including 6 boutiques and department stores in Osaka, where the Respondent is apparently located B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Complainant was able to show the requirements specified under paragraph 4(a) of the Policy:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in respect of which the Complainant has rights: and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name: and
(iii) that the disputed domain name has been registered and used in bad faith. A. Identical or Confusingly Similar
Based on the facts presented by the Complainant, this Panel finds that the disputed domain name is confusingly similar to a mark in which the Complainant has rights under Policy, paragraph 4(a)(i). The Panel finds that there is no doubt that the disputed domain name is confusing similar to the Complainant’s registered trademark. The Respondent has included the Complainant’s longstanding trademark BACCARAT adding to it the word “glass”.
However, had it been necessary, that would not be enough to determine the existence of actual confusion per se, mainly considering that the Respondent has linked the disputed domain name to his blog site. What does indicate a likelihood of actual confusion is that the Respondent (a) has linked its page to sale a Baccarat product creating an association to the Complainant’s goods and competing with the Complainant's site by linking his site to other site that is selling the Complainant’s product in a lower price; (b) did not include any disclaimer on the website and it is not openly made clear that the website is not an official online store and that it is not related to the Complainant; (c), the website colors (variations of grey and red) are similar to the Complainant’s usual corporate design; (d) the Respondent is knowingly creating a likelihood of confusion between their respective websites; (e) did not mention about the Respondent’s relationship with BACCARAT or, rather, about the absence of relationship.
The Respondent’s choice of the combination of wordings including the Complainant’s well-known trademark demonstrates, in this Panel’s view that the Respondent is seeking to attract users to its website. This exploitation of the Complainant’s mark to obtain click-through commissions from the diversion of Internet users has been considered in many decisions to be a common example of bad faith as referred to in paragraph 4(b)(iv) of the Policy, which the Panel discusses further under the heading “C. Registered and Used in Bad Faith” below.
The Complainant owns valuable marks and through the above test, this Panel concludes that there is likelihood of confusion between the Complainant’s marks and the disputed domain name, pursuant to paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Respondent is in default and thus has made no affirmative attempt to show any rights or legitimate interests in the disputed domain name. The Complainant, for its part, has established its prima facie case regarding the Respondent’s lack of rights or legitimate interests, and thus carried its burden under this element of the Policy. See e.g. Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110 and Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455.
As informed by the Complainant, the Respondent’s website provides a page with an index and two hyperlinks to pages entitled “blog/” and “shop/”, and a third link which reloads the main homepage. The “blog/” link manages a blog dealing, among other themes, with IT and football. The link called “shop/” resolves to a single page, which presents for sale a unique Baccarat product. By clicking on this offer, the Internet user is redirected to a website entitled “Moshimo marketplace”, where an Internet user can buy the advertised BACCARAT product with a discounted price.
The Policy indicates that a registrant may have a right or legitimate interest in a domain name if it was making use of the domain name in connection with a bona fide offering of goods or services prior to notice of the dispute.
The Respondent’s knowledge of the Complainant’s right is presumed since it is a well known trademark.
The Respondent is in no way connected with the Complainant and has no authorization to use any of the Complainant’s trademarks.
There is no evidence that the Respondent is or was commonly known by the disputed domain name as an individual, business or other organization.
Thus the Respondent has no known rights or legitimate interests in respect of the disputed domain name. There is no evidence of the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.
Further, the Panel notes that the Respondent has not used the domain name in connection with a legitimate noncommercial or fair use activity, despite the fact that the Respondent’s “blog/” link does, apparently, connect to an Internet blog which discusses, among other themes, IT and football via a website at “www./blog/”. The Panel notes in this regard two issues. First, the blog is not the only, nor even perhaps the primary, focus of the Respondent’s website, evidenced by the fact that the blog entries do not primarily concern topics related to crystal or glass products, which would be natural subjects of discussion under a domain name which incorporates terms relevant to the crystal-products market. Under the circumstances, and noting the below observations regarding commercial use, the Panel finds that this does not constitute a noncommercial or fair use of the disputed domain name.
Secondly, the blog page contains a number of sponsored listings via the Google Ads program, including links to websites advertising, inter alia, apartment rentals, the Ameba blog service, and a Japanese to English translation service. As the Respondent is more than likely generating click-through revenue from such sponsored listings, in addition to commission revenue from the “Moshimo marketplace” site through the “shop/” link on its homepage, the Panel holds that the Respondent is not making any noncommercial or fair use of the disputed domain name in any respect.
The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name, under the Policy paragraph 4(a)(ii). C. Registered and Used in Bad Faith
The Complainant’s trademark is recognized as being a well known trademark. So it is very likely that the Respondent was aware of the Complainant’s rights to BACCARAT trademark at the time the disputed domain name was registered, indicating that such registration was made in bad faith. The Panel finds that this inference is strengthened by the Respondent’s apparent use of the domain name to sell, unauthorized, the Complainant’s goods via the Internet.
Based on that evidence, more fully discussed above, the Panel finds that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to an on-line location, by creating a likelihood of confusion with the Complainant’s mark and company name as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or other location, and this constitutes evidence of bad faith. Policy, paragraph 4(b)(iv).
Further, the Complainant has asserted, and the Respondent has not denied, that the Respondent is the owner of 21 other domain names, a few of which redirect to the same page that has been displayed under the disputed domain name. In this Panel’s view, such registration and use of numerous domain names targeting the Complainant constitutes a pattern of conduct under paragraph 4(b)(ii) of the Policy.
Also, based on the undisputed allegations, the registration of the disputed domain name by the Respondent is in order to divert Internet users seeking information about the Complainant.
Accordingly, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith. 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.
Erica Aoki
Sole Panelist
Dated: November 7, 2010
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