The Complainant is Banque Pictet & Cie SA of Carouge, Switzerland, represented by B.M.G. Avocats, Switzerland.
The Respondent is Alan Meltzer. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 1, 2015. On May 4, 2015, the Center transmitted by email to GoD, LLC a request for registrar verification in connection with the disputed domain name. On May 5, 2015, GoD, LLC 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 .au Dispute Resolution Policy (the “Policy” or “.auDRP”), the Rules for .au Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au 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 proceeding commenced on May 8, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 28, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 29, 2015.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on June 4, 2015. 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 A. Complainant
The Complainant is a company incorporated in Switzerland and one of the leading wealth and asset managers in Europe. The Complainant is the owner of registrations for the trade mark PICTET (the “Trade Mark”) in numerous jurisdictions, including in Australia. The Trade Mark has been used continuously since 1805. B. Respondent
The Respondent is apparently an individual, whose address is unknown. C. The Disputed Domain Name
The disputed domain name was apparently registered on or about February 2, 2015. D. The Website at the Disputed Domain Name
The disputed domain name is resolved to a domain name parking website containing a French language banner link reading “this domain name is for sale for US$1,500”, with English language sponsored links to third party websites (the “Website”). 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical to the Trade Mark, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered or has subsequently been used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail. A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Mark acquired through use and registration which predate the date of registration of the disputed domain name by over 200 years.
The disputed domain name is identical to the Trade Mark. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that the Respondent has rights or legitimate interests in the disputed domain name:
i) before any notice to the Respondent of the dispute, the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name even if the Respondent has acquired no trade mark or service mark rights; or
(iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the name, trade mark or service mark at issue.
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Mark. The Complainant has prior rights in the Trade Mark which precede the Respondent’s registration of the disputed domain name by over 200 years. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name, and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name has been used in connection with a bona fide offering of goods or services. To the contrary, the disputed domain name has been used in respect of the Website, which offers the disputed domain name for sale, has not been authorised by the Complainant, and provides sponsored links to third party websites in order to generate pay-per-click revenue for the Respondent.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The disputed domain name is offered for sale on the Website for USD 1,500, an amount in excess of the likely out-of-pocket expenses incurred by the Respondent in registering the disputed domain name.
In light of this evidence, and the use of the Website in the manner described above, the Panel finds the requisite element of bad faith has been satisfied, under paragraphs 4(b)(i) and 4(b)(iv) of the Policy.
For all the foregoing reasons, the Panel concludes that the disputed domain name has been registered or has subsequently been 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.
Sebastian M.W. Hughes
Sole Panelist
Dated: June 18, 2015
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