Complainant is Swarovski Aktiengesellschaft of Triesen, Liechtenstein, represented by LegalBase Limited, Sri Lanka.
Respondent is Zengwei of Xiamen, Fujian, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Hangzhou AiMing Network Co., LTD (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 18, 2014. On February 18, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 19, 2014, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. On February 24, 2014, the Center transmitted an email to the parties in both Chinese and English language regarding the language of the proceeding. On February 25, 2014, the Complainant confirmed its request that English be the language of the proceeding. Respondent did not comment on the language of the proceeding by the specified due date.
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 Respondent of the Complaint, and the proceedings commenced on March 4, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 24, 2014. Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 25, 2014.
The Center appointed Kimberley Chen Nobles as the sole panelist in this matter on April 3, 2014. 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
Complainant bases its Complaint on its use and registration of the SWAROVSKI mark in Germany, China, and globally. Complainant has provided copies of several of its trademark registrations in Annex C.
Respondent, based upon the WhoIs record, is Zengwei, an individual located in China. 5. Parties' Contentions A. Complainant
Complainant asserts (1) that Complainant is the exclusive owner of trademark rights in the SWAROVSKI mark, (2) that the disputed domain name is confusingly similar to the SWAROVSKI mark, (3) that Respondent has no rights or legitimate interests in the disputed domain name, and (4) that Respondent has registered and used the disputed domain name in bad faith. B. Respondent
Respondent did not submit a response to the Complaint. 6. Discussion and Findings A. Language of the Proceeding
The language of the registration agreement for the disputed domain name is Chinese, but nonetheless Complainant argues that the language of the proceeding should be English. As asserted by Complainant, the content displayed at the website resolving from the disputed domain name was in English and German and that website further appeared to target consumers from English and German-speaking markets. Respondent's apparent attempts to use Complainant's mark to reach into those markets suggest at least a basic ability to read or translate English and German. The Panel finds that English is an acceptable language for this proceeding and, therefore, decides to render its decision in English. B. Standard for UDRP Proceedings
According to paragraph 4(a) of the Policy, for this Complaint to succeed, Complainant must prove each of the following:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith. C. Identical or Confusingly Similar
The disputed domain name is confusingly similar to the SWAROVSKI mark. The disputed domain name incorporates Complainant's SWAROVSKI mark in its entirety. Further, the addition of the words "de" and "schmuck" does not add distinctiveness to the disputed domain name because, translated as the generic term "jewelry", they relate to the business of Complainant and thus only add to the confusion.
The Panel concludes that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in that the disputed domain name is identical or confusingly similar to Complainant's SWAROVSKI mark. D. Rights or Legitimate Interests
Complainant has asserted that Respondent has received no license or authorization of any kind to use the SWAROVSKI mark. Respondent has not claimed that he or she operates a bona fide business using the SWAROVSKI mark and nothing in the record indicates that he or she has any other rights or legitimate interests in that mark. Furthermore, there is no evidence in the available record that Respondent's use of the disputed domain name is legitimate noncommercial or fair use, on that Respondent is commonly known by the disputed domain name.
The Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. E. Registered and Used in Bad Faith
The SWAROVSKI mark is registered and known worldwide, including in China where Respondent is located. The registration of a domain name that is identical or confusingly similar to a registered and famous mark weighs in favor of a finding of bad faith registration. See Swarovski Aktiengesellschaft v. Liu Ji,WIPO Case No. D2011-0445; Swarovski Aktiengesellschaft v. Whois Privacy Protection Service, Inc./ ning ning,WIPO Case No. D2012-0979. Further, the record here indicates that the website resolving from the disputed domain name offered products for sale bearing the SWAROVSKI mark. As set forth by Complainant, Respondent has used the disputed domain name to host a website that is similar to Complainant's website, including Complainant's logo. In the Panel's assessment, Respondent's use of the disputed domain name to divert Internet traffic away from Complainant for Respondent's financial benefit constitutes a bad faith use of the disputed domain name.
Complainant has established that Respondent registered and used the disputed domain name in bad faith, and has satisfied the requirements of 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 name be transferred to Complainant.
Kimberley Chen Nobles
Sole Panelist
Date: April 28, 2014
Full & Egal Universal Law Academy