The Complainant is Les Parfumeries Fragonard of Grasse, France, represented by Inlex IP Expertise, France.
The Respondent is Jaime Vega Montes of Santa Cruz de la Sierra, Andrés Ibañez, Bolivia / Domain Name Subject to ICANN UDRP Dispute of Vancouver, Washington, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with D, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 27, 2012. On July 30, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, 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 August 7, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was August 27, 2012. The Respondent did not file a formal Response, however transmitted several email communications on August 15, 16, 17, 21, 22 and 29, 2012; and on September 10, 2012.
On August 17, 2012, considering the content of the emails from the Respondent, the Center inquired whether the Complainant wished to consider requesting a suspension of the proceedings in order to explore a possible settlement between the parties. It also sent a reminder to that effect on August 21, 2012. On August 22, 2012, the Center informed the parties that the proceedings would be continued, given that the Complainant had not requested a suspension.
The Center appointed Richard Hill as the sole panelist in this matter on September 10, 2012. 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 Panel will not make any findings of fact, for the reasons explained below. 5. Parties’ Contentions A. Complainant
For the reasons set forth below, the Complainant’s contentions are not presented in detail.
The Complainant alleges that it is the owner of numerous rights comprised of or including the well-known denomination FRAGONARD, used around the world for cosmetics and in particular for perfume products. The disputed domain name is clearly confusingly similar to the Complainant’s mark.
According to the Complainant, the Respondent has no rights or legitimate interest in the disputed domain name. In particular, the Respondent is not known by the disputed domain name and has not been licensed or otherwise authorized by the Complainant to use its mark.
The Complainant states that the disputed domain name points to a website that reproduces the Complainant’s mark FRAGONARD and provides links to products that compete with the Complainant’s products. This constitutes bad faith registration and use under the Policy. B. Respondent
The Respondent has sent several email communications, all essentially the same, stating that he registered the disputed domain name at the request of a client in his country, Bolivia, but that the client has released the disputed domain name which is now free. The Respondent states that the disputed domain name is no longer his responsibility and states that the Complainant can register it. 6. Discussion and Findings
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
As noted above, paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable” (emphasis added).
In this case, the parties have both asked for the disputed domain name to be transferred to the Complainant. This Panel holds that in this UDRP proceeding, in accordance with a general legal principle governing arbitrations as well as national court proceedings, that it would not be appropriate for it to act nec ultra petita nec infra petita, that is, that it should not here issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel recognizes the common request, and finds it unnecessary in the circumstances to make findings of fact or of compliance (or not) with the three requisite elements of the Policy.
A similar conclusion was reached by the panel in Williams-Sonoma, Inc. v. EZ-Port, WIPO Case No. D2000-0207; in Slumberland France v. Chadia Acohuri,WIPO Case No. D2000-0195; and in United Pet Group, Inc. v. Texas International Property Associates, WIPO Case No. D2007-1039. A. Identical or Confusingly Similar
For the reasons indicated above, the Panel need not consider this element of the Policy. B. Rights or Legitimate Interests
For the reasons indicated above, the Panel need not consider this element of the Policy. C. Registered and Used in Bad Faith
For the reasons indicated above, the Panel need not consider this element of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Richard Hill
Sole Panelist
Dated: September 12, 2012
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