The Complainant is Rado Uhren AG of Lengnau, Switzerland, represented by FairWinds Partners, LLC, United States of America (“United States”).
The Respondent is Mohammad Sadri, FanTechCo of Isfahan, Islamic Republic of Iran. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Realtime Register B.V. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 27, 2016. On June 28, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 29, 2016, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 1, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 21, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 22, 2016.
The Center appointed Dawn Osborne as the sole panelist in this matter on July 26, 2016. 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 the owner of the RADO trade mark inter alia registered in the United States on April 27, 1965, with first use in commerce in relation to watches recorded as April 12, 1958. The Complainant also owns a United States trade mark for RADO, registered November 28, 2006, for inter alia eyeglasses and sunglasses. Since 2012 it has also offered eyewear under the RADO mark.
The Domain Name was registered on May 17, 2015 and resolves to a website where goods, including eyewear, of competitors of the Complainant are offered for sale. 5. Parties’ Contentions A. Complainant
The Complainant’s submissions can be summarized as follows:
The Complainant is the owner of the distinctive and famous RADO trade mark registered in the United States with first use in commerce recorded as 1958. Long prior to the registration of the Domain Name about one hundred years ago the Complainant commenced use of the RADO mark in relation to luxury watches. The Complainant’s domain name is used to promote the brand and its products and services on the Internet.
As part of its brand promotion the Complainant has also been providing RADO branded sunglasses to its customers who have purchased watches or at promotional events. From 2012 through the present many thousands of pairs of such sunglasses have been provided to customers all around the world.
The Domain Name is confusingly similar to the Complainant’s RADO registered trade mark. The mere addition of generic words to a trade mark creates a confusingly similar domain name. Further the addition of the generic Top-Level Domain (“gTLD”) “.com” does nothing to alleviate confusion between the RADO mark and the Domain Name.
The Respondent has no rights or legitimate interests in the Domain Name. The Respondent attracts Internet users to its site by using the Complainant’s RADO mark with a hyphen and the generic term “eyewear” making visitors think they are being linked to one of the Complainant’s legitimate sites. The site attached to the Domain Name is selling eyewear of undetermined origin.
The Respondent’s actions are not a bona fide offering of goods or services. The Respondent is not affiliated with or authorized by the Complainant as the site attached to the Domain Name suggests. The site does not accurately disclose the Respondent’s relationship with the trade mark owner. The Respondent has failed to answer communications sent by the Complainant’s representative. The site definitely sells goods not related to the Complainant as it mentions products like clothing and shoes which are not made or sold by the Complainant. This cannot be bona fide.
The Respondent is not commonly known by the name RADO and does not own any trade mark rights in this name. Commercial use cannot be noncommercial fair use.
RADO has no meaning in the Persian language where the Respondent is based so it cannot claim to be making descriptive fair use of this word.
The Domain Name was registered and is being used in bad faith. Bad faith can be found where a respondent, by use of a domain name intentionally attempts to attract for commercial gain Internet searches to its website or other online location by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of the website or any product on it.
The Respondent intentionally used the RADO mark without the consent of the Complainant and is insidiously passing off competing goods as those of the Complainant when they are not.
The Respondent ignored a demand letter 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 is a widely-known provider of watches and related services and is the owner of the RADO trade mark in the United States with first use in commerce recorded as 1958. The Complainant also holds a RADO trade mark for eyeglasses and sunglasses.
The Domain Name consists of a name identical to the Complainant’s registered mark RADO plus a hyphen and the generic word “eyewear” indicating a product that the Complainant has offered recently under its brand. The addition of this hyphen and generic word does not serve to distinguish the Domain Name from the Complainant’s RADO mark especially bearing in mind that the Complainant has offered eyewear under its RADO mark. The Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy. B. Rights or Legitimate Interests
It it is clear from the evidence that the Respondent has used the site attached to the Domain Name to promote goods in competition with those of the Complainant. It is clear from the content of the site that the Respondent was aware of the significance of the name “Rado” at the time of registration as the site attached to the Domain Name uses the Complainant’s mark in its logo form. The usage is not fair as the site makes unauthorized use of the Complainant’s logo alongside products of the Complainant’s competitors and does not make it clear that there is no (commercial) connection with the Complainant. The Panel finds this use likely to be confusing for Internet users. As such it cannot amount to the bona fide offering of goods or services. The Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use the Complainant’s name and logo. As such the Panel finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy. C. Registration and Use in Bad Faith
The Complainant alleges that the Respondent’s use of the site is commercial and it is using it to make profit from products which compete with the Complainant in a confusing manner. The content of the Respondent’s web site makes it clear that it was aware of the Complainant’s rights at the time of registration of the Domain Name. It seems clear that the use of the Complainant’s logo on the Respondent’s website would cause people to associate the website at the Domain Name with the Complainant and its business and goods. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of the website.
As such, the Panel finds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb 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.
Dawn Osborne
Sole Panelist
Date: August 1, 2016
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