The Complainant is Raymond Weil SA of Geneva, Switzerland, represented by Etude Tissot, Switzerland.
The Respondent is Fancy Bandwith Inc. of Los Angeles, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name, (the “Domain Name”) is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 25, 2012. On September 25, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 26, 2012, 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 October 2, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 22, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 23, 2012.
The Center appointed Tony Willoughby as the sole panelist in this matter on November 6, 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 Complainant is a well-known Swiss watch company incorporated in Geneva in 1975, one of whose founders was a Mr. Raymond Weil. The Complainant is the registered proprietor of a number of trade mark registrations for the mark RAYMOND WEIL, including International Trade Mark registration No. 446233 dated July 11, 1979 RAYMOND WEIL (word mark) in class 14 for watches and related goods.
The Complainant is the proprietor of the domain name, , which resolves to the Complainant’s website connected to another of its domain names, .
The Domain Name was registered on February 14, 2012 and resolves to a website connected to the domain name, . That website offers for sale watches under and by reference to the RAYMOND WEIL trade mark and watches featuring a number of other brand names, being competitors of the Complainant.
On three different occasions in March, April and May 2012 the Complainant wrote to the Respondent seeking transfer of the Domain Name. The Respondent did not reply to any of those communications. 5. Parties’ Contentions A. Complainant
The Complainant contends that the Domain Name is identical or confusingly similar to the Complainant’s RAYMOND WEIL registered trade mark, that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered the Domain Name in bad faith and is using it in bad faith within the meaning of paragraph 4(b)(iv) of the Policy. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. General
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark 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 was registered and is being used in bad faith. B. Identical or Confusingly Similar
The Domain Name comprises the “www” World Wide Web prefix, the Complainant’s RAYMOND WEIL trade mark (albeit absent the space between the two elements of the trade mark) and the generic “.com” top level domain suffix.
The Domain Name is identical to one of the URLs leading to the Complainant’s main website, save for the absence of a dot after the “www”.
The Panel finds that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights. C. Rights or Legitimate Interests
The website to which the Domain Name resolves is a commercial website offering for sale watches of a large number of brands, one of which is the Complainant’s Raymond Weil brand, others being direct competitors to the Complainant’s brand.
The Complainant contends that the Respondent registered the Domain Name, knowing of the Complainant’s brand and seeking to attract visitors to the commercial website to which the Domain Name resolves with a view to attracting visitors to that website on the back of the fame of the Complainant’s brand and with a view to exposing the visitor to the full range of watch brands on offer.
The Complainant asserts that it has never authorized the Respondent to use the Complainant’s RAYMOND WEIL trade mark for this or any other purpose and contends that the Respondent has no rights or legitimate in respect of the Domain Name. The Complainant points to the fact that the Respondent has not responded to any of the Complainant’s three pre-Complaint letters, which is not the behaviour of an “innocent” registrant.
It is now well-established that while it is incumbent upon the Complainant to prove all three elements of paragraph 4(a) of the Policy, in the case of this element which involves proving a negative, it will be sufficient for a complainant to advance a prima facie case calling for an answer.
The Panel is satisfied that the Complainant has put forward a sufficient prima facie case and that an answer is called for from the Respondent. However, the Respondent has chosen not to provide an answer.
Paragraph 4(c)(i) of the Policy provides that use of a domain name in connection with a bona fide offering of goods or services “shall demonstrate [the respondent’s] rights or legitimate interests to the domain name” for this purpose. The key words here are “bona fide”. In the view of this Panel an offering of the Complainant’s goods alongside goods competing with those of the Complainant cannot be a bona fide offering for this purpose where it is undertaken under and by reference to a domain name, which in essence comprises the Complainant’s trade mark and nothing else. The Respondent has chosen not to provide an explanation and the Panel cannot conceive of any justification that the Respondent could have put forward such as to establish any right or legitimate interest in respect of the Domain Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. D. Registered and Used in Bad Faith
By the same reasoning the Panel finds that the Respondent registered the Domain Name in bad faith and is using it in bad faith within the meaning of paragraph 4(b)(iv) of the Policy.
In the absence of any explanation from the Respondent it seems clear to the Panel that, as contended by the Complainant, the Respondent selected the Domain Name precisely because it replicated to a substantial degree the Complainant’s trade mark and one of its URLs and with a view to attracting Internet users into the website to which the Domain Name resolves for the purpose of selling a wide variety of watch brands, many of which compete with the Complainant’s brand. The potential for confusion of Internet users (a requirement of paragraph 4(b)(iv) of the Policy) lying in the fact that a substantial proportion of Internet users are likely either (i) to believe that the Domain Name represents a domain name of or authorized by the Complainant; or (ii) to enter the Domain Name into their browsers by mistake believing that they were accurately entering the URL to the Complainant’s website.
In effect the Respondent is using the Domain Name for commercial gain to deceive Internet users and to expose them to watches of the Complainant’s competitors on the back of the fame of the Complainant’s trade mark.
As indicated above, the Panel finds that the Respondent registered the Domain Name in bad faith and is using it in bad faith within the meaning of paragraph 4(b)(iv) 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 Domain Name, , be transferred to the Complainant.
Tony Willoughby
Sole Panelist
Dated: November 7, 2012
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