The Complainants are The Swatch Group AG / Swatch AG, both of Biel/Bienne, Switzerland, represented by Steven M. Levy, United States of America (“United States”).
The Respondent is packy phim of Emery, Utah, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 16, 2018. On April 17, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 18, 2018, 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 April 20, 2018. In accordance with the Rules, paragraph 5, the due date for Response was May 10, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 11, 2018.
The Center appointed Steven A. Maier as the sole panelist in this matter on May 25, 2018. 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.
The Panel finds that the Complainants have a specific common grievance against the Respondent and that it would be equitable and procedurally efficient to permit a single proceeding by both Complainants against the Respondent. 4. Factual Background
The Complainants are companies having their principal place of business in Switzerland. The Complainant The Swatch Group AG is the parent company of the Complainant Swatch AG. The Complainants are suppliers of wristwatches under the name and trademark SWATCH.
The Complainants are the owners of various trademark registrations for the marks SWATCH and SWATCH GROUP, including International Trademark number 1187122 for the mark SWATCH GROUP, registered on September 18, 2013 in numerous classes of goods and services and designating a total of five jurisdictions.
The disputed domain name was registered on February 13, 2018.
The disputed domain name does not appear to have resolved to any active website. However, the Complainants have provided evidence of emails sent to several of its employees from an email address “[…]@”, purporting to come from the Complainants’ Chief Financial Officer and requesting the processing of payments. 5. Parties’ Contentions A. Complainant
The Complainants state that they have continuously used the marks SWATCH and SWATCH GROUP since at least 1983 and that the marks are distinctive of the Complainants as an industry leader in the field of wristwatches. The Complainants produce evidence of substantial sponsorship, advertising and promotion associated with the marks SWATCH and SWATCH GROUP and of significant public recognition of those marks.
The Complainants submit that the disputed domain name is identical or confusingly similar to their trademarks SWATCH and SWATCH GROUP. They contend in particular that the disputed domain name consists of no more than a common misspelling of their mark SWATCH GROUP by the substitution of the letter “q” for the letter “g”.
The Complainants contend that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainants say that the Respondent has no trademark rights corresponding to the disputed domain name, that it has not been commonly known by a name corresponding to the disputed domain name and that it is making neither bona fide commercial use nor legitimate noncommercial or fair use of the disputed domain name. Instead, the Complainants submit that the Respondent is using the disputed domain name in order to impersonate the Complainants for the purpose of a fraudulent “phishing” scheme as described above.
The Complainants submit that the Respondent registered and has used the disputed domain name in bad faith. The Complainants refer to the emails to their employees purporting to come from their Chief Financial Officer and say it is clear that the Respondent deliberately targeted their SWATCH and SWATCH GROUP trademarks in an attempt to perpetrate a financial fraud known as “whaling” or “spear fishing” upon them.
The Complainants request the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainants’ contentions. 6. Discussion and Findings
In order to succeed in the Complaint, the Complainants are required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Even in a case such as this where no Response has been filed, it is still necessary for the Complainants to establish that each of the above elements is present. A. Identical or Confusingly Similar
The Complainants have established that they have registered trademark rights in the marks SWATCH and SWATCH GROUP. The disputed domain name is effectively identical to the Complainants’ trademark SWATCH GROUP but for the substitution of the letter “q” for the letter “g”. In the view of the Panel this substitution, which is of itself visually misleading, fails to distinguish the disputed domain name from the Complainant’s trademark SWATCH GROUP and the Panel therefore finds that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainants have rights. B. Rights or Legitimate Interests
In the view of the Panel, the Complainants’ submissions set out above give rise to a prima facie case for the Respondent to answer that it has no rights or legitimate interests in respect of the disputed domain name. However, the Respondent has not participated in this proceeding and has not, therefore, submitted any explanation for its registration and use of the disputed domain name, or evidence of rights or legitimate interests on its part in the disputed domain name, whether in the circumstances contemplated by paragraph 4(c) of the Policy or otherwise. There being no other evidence before the Panel of any such rights or legitimate interests, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The Panel finds that the Complainants’ trademarks SWATCH and SWATCH GROUP are distinctive and widely known and can conceive of no explanation for the Respondent’s registration of the disputed domain name, which is inherently misleading, other than to impersonate the Complainant. The Panel also accepts the Complainant’s evidence, which the Respondent has not disputed, that the Respondent has used the disputed domain name for the purpose of sending emails to the Complainants’ employees in an apparent attempt to induce them to process fraudulent payments. Such use of the disputed domain name clearly constitutes use of the disputed domain name in bad faith and the Panel therefore concludes 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 Complainants.
Steven A. Maier
Sole Panelist
Date: June 6, 2018
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