The Complainant is Swarovski Aktiengesellschaft, Triesen Liechtenstein, represented by LegalBase (Pvt) Limited, Sri Lanka.
The Respondent is Luly Stephanie, Qinghe District Huaian, China. 2. The Domain Names and Registrar
The disputed domain names and are registered with GoD, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 15, 2013. On May 15, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain names. On May 16, 2013, 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 May 17, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was June 6, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 12, 2013.
The Center appointed Anders Janson as the sole panelist in this matter on June 26, 2013. 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 runs a global business as producer of cut crystal, genuine gemstones as well as created stones. The Complainant is represented in over 120 countries throughout the world, including China.
The Complainant is the owner of several trademark registrations containing the trademark SWAROVSKI. Notably SWAROVSKI was registered on July, 30 1987 as a word mark by the China Trademark Office. Further registrations of SWAROVSKI as a word mark by the China Trademark Office include those made on August 30, 1989, September 20, 1989, May 28, 2008 and October 14, 2007.
The Complainant is further the owner of several domain names containing the trademark SWAROVSKI, including and .
The disputed domain names and were registered on February 26, 2013. 5. Parties’ Contentions A. Complainant
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy is present in this case:
The disputed domain names are confusingly similar to the registered trademark SWAROVSKI in which the Complainant has rights. The disputed domain names incorporate the SWAROVSKI trademark in its entirety. The addition of the suffixes “crystal”, “shop”, “sale” ”jewelry”, as well as the addition of top level domain “.com” to the trademark SWAROVSKI in the disputed domain names does not diminish the fact that the disputed domain names are confusingly similar to the trademark.
The Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant has not granted the Respondent a license or otherwise permitted her to legally make use of the trademark SWAROVSKI. The Respondent has never been known by the disputed domain names. Oppositely, the disputed domain names have been used by the Respondent to redirect Internet users towards websites containing offers of products, purportedly produced by the Complainant. This cannot be regarded as a bona fide use of the disputed domain names.
The disputed domain names were registered and are being used in bad faith. The Respondent registered the disputed domain names with the intent to create confusion with the Complainant’s trademark SWAROVSKI for commercial gain, as it is inconceivable that the Respondent was unaware of the Complainant’s right in the trademark SWAROVSKI. The trademark in question is well-known in China and in the world. The Respondent registered the disputed domain names without any legitimate relationship with the SWAROVSKI trademark, which constitutes bad faith. The Respondent has done nothing to identify itself as being independent from the Complainant, but instead purported to sell the Complainant’s products. The disputed domain names were being used commercially by exploiting the Complainant’s trademark SWAROVSKI, because of the purported affiliation with Swarovski. All this constitutes use of the disputed domain names in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel finds that the Complainant has trademark rights in the mark SWAROVSKI by virtue of the trademark registrations mentioned under Section 4 above.
The disputed domain names are and . Thus the disputed domain names contain the Complainant’s registered trademark SWAROVSKI in its entirety, together with the additions “crystal”, “shop”, “sale”, “jewelry”, hyphens and the generic and functional gTLD “.com”. When determining whether a domain name and a trademark are identical or confusingly similar, the gTLD can typically be disregarded. Likewise the Panel finds that the hyphens in the disputed domain names shall be disregarded. With regards to the other suffixes the Panel finds that those merely serve to emphasize the trademark element of SWAROVKSI in the disputed domain names, as they all, typically, relate to the Complainant’s business. Therefore they do not diminish the confusing similarity between the disputed domain names and the trademark SWAROVSKI. The Panel finds that the disputed domain names and are confusingly similar to the Complainant’s registered trademark SWAROVSKI.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
In this case, the Complainant has offered meaningful explanations and has provided enough evidence of its exclusive rights concerning the mark SWAROVSKI. The Panel finds that the Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain names. Therefore, the burden of production shifts to the Respondent to bring forward evidence of its rights or legitimate interests, if such evidence exists. See Banco Bradesco S/A v. Martha Dantas,WIPO Case No. D2010-0646. On the existing record, the Respondent has failed to provide any evidence of rights or legitimate interests in the disputed domain names, and failed to counter the Complainant’s arguments. Such failure by the Respondent to file a Response leaves the Panel to decide the case on the basis of the available record and the evidence provided by the Complainant. Accordingly, upon consideration of the evidence in the record and the evidence provided by the Complainant, the Panel is satisfied that the Respondent lacks rights or legitimate interests in the disputed domain names.
Therefore, the Panel finds, also in view of the Panel’s further findings below, that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel finds that the Complainant’s trademark SWAROVSKI is wellknown, and further that it is highly unlikely that the Respondent, by utter accident, would have registered the disputed domain names. Accordingly, the Panel finds that the Respondent must have chosen the disputed domain names and deliberately to trade on the Complainant’s reputation. Indeed the websites “www.” and “www.” still on the day on which this decision was laid down contained offers and pictures of supposed products from the Complainant, while the Respondent has done nothing to identify itself as being independent from the Complainant The Panel thus finds that the Respondent has intentionally attempted to attract Internet users to its website by using the confusingly similar domain names and , which the Panel concludes is evidence of bad faith registration and use under the Policy.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(iii) 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 names, and be transferred to the Complainant.
Anders Janson
Sole Panelist
Date: July 10, 2013
Full & Egal Universal Law Academy