Complainants are Calvin Klein Trademark Trust of New York, New York, United States of America and Calvin Klein Inc. of Wilmington, Delaware, United States of America, represented by Legal Experience Advocaten, the Netherlands.
Respondent is Gilles Chiazza of "Biol, Germany". 2. The Domain Name and Registrar
The disputed domain name (hereafter: the "Domain Name") is registered with SIDN through R. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 9, 2015. On September 9, 2015, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On September 10, 2015, SIDN transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the "Regulations").
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 15, 2015. In accordance with the Regulations, article 7.1, the due date for Response was October 4, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on October 6, 2015.
The Center appointed Dinant T. L. Oosterbaan as the panelist in this matter on October 20, 2015. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background
According to the evidence submitted by Complainants, Complainants hold multiple trademark registrations for CALVIN KLEIN, including a Benelux trademark with registration number 0347401 and a registration date of June 6, 1977 and a Community trademark with number 000617381 and a registration date of January 29, 1999. In addition Complainants have a range of domain names, including which is being used for an e-commerce website since 2009. The trademark CALVIN KLEIN is being used by Complainants in the design, production and sale of designer apparel and other products.
The Domain Name, , was registered by Respondent on August 12, 2014. The Domain Name resolves to a webshop that offers clothing products. 5. Parties' Contentions A. Complainant
Complainants submit that the Domain Name is identical or confusingly similar to the CALVIN KLEIN trademark as it contains the CALVIN KLEIN trademark in its entirety.
According to Complainants, in view of Complainants' trademark, Respondent has no rights to or legitimate interests in respect of the Domain Name. Internet users are directed to a website which sells Calvin Klein branded counterfeited goods. Complainants submit that Respondent is not using the Domain Name in connection with a bona fide offering of goods or services as the website to which the Domain Name resolves is selling counterfeited goods.
In addition Complainants advances several arguments based upon the Benelux Convention on Intellectual Property ("BVIE") and the Council Regulation (EC) on the Community Trade Mark ("CTMR").
Complainants submit that Respondent has registered and is using the Domain Name in bad faith as Respondent had knowledge of the well-known trademark of Complainants and is intentionally misleading Internet users for commercial gain by selling counterfeited goods. B. Respondent
Respondent did not reply to Complainants' contentions. 6. Discussion and Findings
Based on article 2.1 of the Regulations, a claim to transfer a domain name must meet three cumulative conditions:
a. the domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law in which the complainant has rights, or other name mentioned in article 2.1(a) under II of the Regulations; and
b. the respondent has no rights to or legitimate interests in the domain name; and
c. the domain name has been registered or is being used in bad faith.
As Respondent has not filed a Response, the Panel shall rule on the basis of the Complaint. In accordance with article 10.3 of the Regulations, the Complaint shall in that event be granted, unless the Panel considers it to be without basis in law or in fact.
As a preliminary matter, the Panel notes that Complainants have submitted multiple arguments based upon the BVIE and the CTMR. As the Regulations contain their own substantive rules on the basis of which the Panel has to decide, the Panel need not take into account the arguments of Complainants based upon the BVIE and CTMR. A. Identical or Confusingly Similar
Pursuant to article 2.1(a) of the Regulations, Complainants must establish that the Domain Name is identical or confusingly similar to a trademark in which Complainants have rights.
Complainants have established that they have rights in Benelux and Community trademark registrations for CALVIN KLEIN. The Domain Name, , incorporates the entirety of the CALVIN KLEIN trademark. The Top-Level Domain ".nl" and the descriptive geographical addition "nederland" may be disregarded for purposes of article 2.1(a) of the Regulations.
The Panel finds that the Domain Name is confusingly similar to the CALVIN KLEIN trademark of Complainants. B. Rights or Legitimate Interests
In the Panel's opinion, Complainants have made a prima facie case that Respondent lacks rights to or legitimate interests in the Domain Name. This is particularly true as Respondent is not making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark of Complainants. Based on the substantial evidence provided by Complainants, it appears that Respondent sells counterfeited Calvin Klein branded goods on the website to which the Domain Name resolves. Respondent makes use of the value of the CALVIN KLEIN trademark and the likelihood of confusion with the trademark of Complainants, which cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name. Furthermore, on the basis of the record, the Panel finds that Respondent is not commonly known by the Domain Name and has not acquired trademark rights corresponding to the Domain Name.
Under these circumstances the Panel finds that Respondent has no rights to or legitimate interests in the Domain Name. C. Registered or Used in Bad Faith
The Panel finds that the Domain Name has been registered and is being used in bad faith. The trademark of Complainants was registered well before the registration date of the Domain Name by Respondent. Considering also the notoriety and distinctiveness of Complainants' mark, the Panel finds that Respondent knew or should have known that the Domain Name included Complainants' trademark.
Complainants have submitted substantial evidence that Respondent uses the Domain Name for a website selling counterfeited goods. On this basis, the Panel finds that Respondent intentionally attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trademark of Complainants as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product on its website or location, which constitutes registration and use in bad faith pursuant to article 3.2(d) of the Regulations.
While this is merely an additional consideration, the Panel adds that bad faith registration and use of the Domain Name is further indicated by the fact that Respondent at the time of registration provided a fictitious address, as both the street and the town Biol, although existing in France, do not exist in Germany as is mentioned in the contact details provided by Respondent upon registration of the Domain Name. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name, , be transferred to Complainant Calvin Klein Inc.
Dinant T. L. Oosterbaan
Panelist
Date: October 28, 2015
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