|Kläger||Parfums Christian Dior S.A.|
|Beklagter||1 Netpower, Inc.|
WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Parfums Christian Dior v. 1 Netpower, Inc.
Case No. D2000-0022
Complainant is Parfums Christian Dior S.A., 125 rue du Prsident Wilson, 92593 Levallois-Perret Cedex, France. Respondent is 1 Netpower, Inc., 1722 Aurora, Richardson, Texas 75081.
The Domain Name(s) and Registrar(s)
The domain names at issue are:
hereinafter referred to as the "Domain Names". The registrar is Network Solutions, Inc.
The WIPO Arbitration and Mediation Center (the Center) received Christian Dior's complaint on January 29, 2000 (electronic version) and February 1, 2000 (hard copy and exhibits). The Center verified that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). Complainant made the required payment to the Center. The formal date of the commencement of this administrative proceeding is February 4, 2000.
On February 1, 2000, the Center transmitted via email to Network Solutions, Inc. a request for registrar verification in connection with this case. On February 3, 2000, Network Solutions, Inc. transmitted via email to the Center, Network Solutions Verification Response, confirming that the registrant is 1 Netpower, Inc. and the contact for both administrative and billing purposes is Hall, Earl B.
Having verified that the Complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted on February 4, 2000, to firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com and firstname.lastname@example.org the Notification of Complaint and Commencement of the Administrative Proceeding. The Center advised that the response was due by February 23, 2000. On the same day, the Center transmitted via air mail copies of the foregoing documents to:
Richardson, TX 75081
United States of America
On February 8, 2000, Earl B. Hall submitted via email to the Center in the name of 1Netpower, Inc. the following reaction to the Notification of Complaint and Commencement of the Administrative Proceeding:
"To whom it may concern,
Earl. B. Hall here from 1Netwpower Inc. in regard to the claim for adverse usage of captioned Internet Domain Names.
Being an Internet Host Provider, I am constantly requested to acquire many different names for many different clients. We used to do this as a free service to new prospective hosting clients, before Network Solutions changed their rules to pre-pay registration. If registration wasnt paid for, it went back in to database.
As Internics position has been for many years, I also do not feel that it is my responsibility to ascertain anyones so-called Legal right or so-called Intellectual rights to use any name. We merely applied for the registration for a prospective client.
In the captioned instances the Internic Registration fees were never paid, and the name and/or trademark was never used in any way shape or form. I have no intention of utilizing any such Tradename or domain name for any reason whatsoever.
If you please note all these names references were applied for several months before Internic required pre-payment. The Internic billing period was only good for 30 days from the date of application. According to their policies a domain name not paid for was placed back in the open database. Obviously Network Solutions has never updated their database. Consequently, your problem is definitely not with 1Netpower, Inc., but with Internics inability or unwillingness to update Their Database.
As far as I know, 1Netpower, Inc. doesnt own the domain names in question. It would be impossible for us to transfer them".
While this email does not formally constitute a Response as defined by paragraph 5 of the Rules, its content will be taken into account in the analysis of this matter.
On February 18, 2000, in view of the Complainants designation of a single panelist (but without prejudice to any election to be made by the respondent) the Center invited M. Geert Glas to serve as a panelist and transmitted to him a Request for Declaration of Impartiality and Independence and a Statement of Acceptance.
Having received on February 22, 2000, M. Geert Glas' Declaration of Impartiality and Independence and his Statement of Acceptance, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which M. Geert Glas was formally appointed as the Sole Panelist. The Projected Decision Date was March 5, 2000. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.
The Administrative Panel shall issue its Decision based on the Complaint, the e-mails exchanged, the Policy, the Rules and the Supplemental Rules.
The complaint is based upon several trademark registrations for CHRISTIAN DIOR, DIOR and DIOR-variants in the U.S. Patent and Trademark Office, copies of which appear in Exhibit 2 of the complaint.
These trademarks include:
DIOR Reg. No. 886,004 February 10, 1970
CHRISTIAN DIOR Reg. No. 2,153,858 April 28, 1998
DIORLIGHT Reg. No. 2,232,710 March 16, 1999
DIORIFIC Reg. No. 2,200,117 October 27, 1998
DIORISSIMO Reg. No. 701,515 July 19, 1960
DIORESSENCE Reg. No. 906,346 January 19, 1971
DIORELLA Reg. No. 976,471 January 8, 1974
It appears from Network Solutions Verification Response that Respondent is the registrant of the Domain Names. Respondent registered the Domain Names on June 2, 1999. Respondent registered also at least 46 other domain names, some of which incorporate famous third party trademarks. There is no relation between Respondent and Complainant and Respondent is not a licensee of Complainant, nor has he otherwise obtained an authorization to use Complainants marks. The Domain Names do not resolve to a web site or other on-line presence.
5. Parties Contentions
Complainant contends that Respondent has registered the Domain Names which names are identical to and/or confusingly similar to Complaint's DIOR and CHRISTIAN DIOR marks, that Respondent has no rights or legitimate interests in respect of the Domain Names and that the Domain Names have been registered and are being used in bad faith.
Consequently, Complainant requires the transfer of the Domain Name registrations to the Complainant.Respondent
In its e-mail of February 8, 2000, Respondent avers that 1 Netpower, Inc. merely applied for the registration of the Domain Names for a prospective client and that Respondent does not own the Domain Names since the Domain Names were never paid for and should have gone back to the database.
Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."Applied to this case, Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the Domain Names registered by the Respondent are identical or confusingly similar to the trademarks or service marks in which the Complainant has rights; and,
(2) that the Respondent has no legitimate interests in respect of the Domain Names; and,
(3) that the Domain Names have been registered and used in bad faith.Identity or Confusing Similarity
The Domain Names all consist of the words "DIOR or "CHRISTIAN DIOR" followed by the words "COSMETICS" or "FASHIONS".
DIOR and CHRISTIAN DIOR are registered trademarks of the Complainant. Several other trademarks of the Complainant consist of the core words DIOR or CHRISTIAN DIOR to which words or letters have been added (e.g. DIORLIGHT,DIORIFIC, DIORISSIMO, DIORESSENCE, DIORELLA).
Complainant has for several decades successfully been using its invoked trademarks primarily in the areas of fashion and cosmetics. It can be said that these trademarks have become well-known marks in the sense of art. 6 bis of the Paris Convention.
In view of the above, the Administrative Panel finds that the Domain Names are confusingly similar to the trademarks DIOR and CHRISTIAN DIOR of the Complainant.
Rights or Legitimate Interests
Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks or to apply for any domain name incorporating any of those marks.
In his e-mail to the Center of February 8, 2000 the Respondent does not invoke any circumstance which could demonstrate its rights or legitimate interests to the Domain Names (paragraph 4c of the Policy). To the contrary, in this e-mail, the Respondent states that "As far as I know, 1 Netpower, Inc. doesn't own the domain names in question".
The Administrative Panel therefore finds that Respondent has no rights or legitimate interests in the Domain Names.
Registration and Use in Bad Faith
Respondent indicates in his e-mail reply of February 8, 2000 that he "merely applied for the registration (of the Domain Names) for a prospective client."
It appears from a January 27, 2000 printout of the WHOIS database that at least 46 other domain name registrations were made by Respondent. Some of these other domain name registrations include well-known trademarks of third parties active in the fashion, clothing and cosmetics industries: GUCCI, VERSACE, GIORGIO ARMANI, LOUIS VUITTON, LEVIS.
Respondent does not specify for which "prospective client" he would have registered the Domain Names. There is no indication whatsoever that Respondent would have registered the Domain Names on behalf of, or at the request of Complainant or an affiliate of Complainant.
In any event, the Domain Names were never transferred to any third party nor did Respondent seem to have associated the Domain Names with any website or online presence.
In view of the above, the Administrative Panel finds that Respondent has registered the Domain Names in bad faith.
In Respondents e-mail of February 8, 2000, Respondent states that the registration fees for the Domain Names were never paid, apparently in the absence of a "prospective client" willing to remunerate Respondent.
As a result the Domain Names have never been associated with any website or online presence. Moreover, Respondent explicitly states in his e-mail reply of February 8, 2000 that he has "no intention of utilizing any such Tradename or domain name for any reason whatsoever".
This undertaking seems to be based on Respondents conviction that as no registration fees were ever paid, Respondent no longer has any right to the Domain Name registrations ("As far as I know, 1Netpower, Inc. doesnt own the domain names in question"). In Respondents view, the sole reason for this conflict is the failure of Network Solutions, Inc. to update their database: "Consequently, your problem is definitely not with 1Netpower, Inc. but with Internics inability or unwillingness to update their database"(e-mail of February 8, 2000).
It is not for this Administrative Panel to rule whether Network Solutions, Inc. acted in conformity or violation of its rules when leaving the Domain Name registrations in the name of Respondent after Respondent allegedly failed to pay the registration fees.
For the Administrative Panel the relevant fact is that the Domain Name registrations are still today in Respondents name. Consequently Respondent is in a position to transfer the Domain Names, without prejudice if so wished.
By refusing to transfer the Domain Names while at the same time acknowledging that he has no rights or legitimate interests in them, Respondent knowingly prolongs a situation which is at odds with the legal rights of the parties involved and knowingly obstructs the registration of the Domain Names in the name of Complainant and their subsequent use by Complainant.
In the case at hand such obstruction is tantamount to the examples of evidence of use in bad faith mentioned under Paragraph 4b of the Policy.
The Administrative Panel therefore finds that Respondent has also used the Domain Names in bad faith.
In light of the foregoing, the Administrative Panel decides that the Domain Names registered by Respondent are confusingly similar to the trademarks of Complainant, that the Respondent has no rights or legitimate interests in respect of the Domain Names, and that the Respondents Domain Names have been registered and are being used in bad faith.
Accordingly, pursuant to Paragraph 4,i of the Policy, the Administrative Panel requires that the registration of each of the Domain Names be transferred to Complainant. The Domain Names are:
Dated: March 3, 2000