The Complainant is Swarovski Aktiengesellschaft of Triesen, Liechtenstein represented by LegalBase (Pvt) Limited, Sri Lanka.
The Respondent is Brian Martin Person of La Crescenta, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 15, 2013. On October 16, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 17, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 24, 2013 providing the registrant and contact information disclosed by the Registrar and invited the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on the same day.
The Center verified that the Complaint together with the amendment to 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 25, 2013. In accordance with paragraph 5(a) of the Rules, the due date for Response was November 14, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 15, 2013.
The Center appointed Tuukka Airaksinen as the sole panelist in this matter on December 12, 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 paragraph 7 of the Rules. 4. Factual Background
The Complainant is the owner of the trademark SWAROVSKI, registered inter alia as a Community Trade Mark No. 7462922, with priority from December 4, 2008. The disputed domain name was registered on September 13, 2013. 5. Parties’ Contentions A. Complainant
The Complainant uses the well-known trademark SWAROVSKI for example in connection with jewellery, home accessories, and collectibles. The Complainant's products are sold in 1,250 own shops and by 1,100 partner-operated shops worldwide.
The Respondent is operating an online shop offering various purported Swarovski products. The Respondent is therefore using the disputed domain name to confuse consumers into believing that its website is authorized by the Complainant. The disputed domain name is confusingly similar to the Complainant's trademark because it contains the trademark in its entirety and only combines it with the common and descriptive English word “charms”.
Because of the fame of the Complainant's trademark, the Respondent must have been aware of it when registering the disputed domain name. The Respondent is using the disputed domain name to sell products that are in competition with the Complainant's products and purports to be affiliated with the Complainant. The Respondent has attempted to attract consumers, for commercial gain, to its website by creating confusion with the Complainant's trademark and has done nothing to identify itself as being independent from the Complainant. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has shown that it has registered the word mark SWAROVSKI e.g. as a Community Trade mark. This word is included in its entirety in the disputed domain name. In addition, the word “charms” is included in the disputed domain name.
The word “charms” is a descriptive English word for the Complainant's goods, jewellery. It therefore is not sufficient to render the disputed domain name different from the Complainant's trademark. If anything, it enhances the association of the disputed domain name with the Complainant’s trademark.
The Panel therefore finds that the disputed domain name is confusingly similar to the Complainant's trademark. B. Rights or Legitimate Interests
The consensus view among UDRP panels is that paragraph 4(c) of the Policy shifts the burden to the Respondent to come forward with evidence of a right or legitimate interest in the disputed domain name, once the Complainant has made a prima facie showing indicating the absence of such rights or interests. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270 and paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition.
In this case, the Complainant has made a prima facie case that the Respondent lacks any right or legitimate interest in the disputed domain name by contending that it has not authorised the Respondent to register and use the disputed domain name, that the Respondent is not affiliated with the Complainant and that the disputed domain name is not used for the bona fide offering of goods and services.
The Respondent has not contested these contentions. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests to the disputed domain name. C. Registered and Used in Bad Faith
It is unlikely that the Respondent would not have been aware of the Complainant's trademark when registering the disputed domain name. This assumption is supported by the fact that the website to which the disputed domain name resolves, displays also the Complainant's logo, gives the impression of being affiliated with the Complainant, and indeed offers products competing with those of the Complainant, in other words jewellery.
The Respondent used the domain name to intentionally attract, for commercial gain, Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's mark, as indicated in paragraph 4(b)(iv) of the Policy.
The Panel finds that the disputed domain name has been registered and is being used in bad faith. 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.
Tuukka Airaksinen
Sole Panelist
Date: December 17, 2013
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