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WIPO-UDRP Entscheid
D2009-1268

Fallnummer
D2009-1268
Kläger
Raymond Weil SA
Beklagter
A., N.,
Entscheider
Ehiribe, Ike
Betroffene Domain(s)
Status
Geschlossen
Entscheidung
Transfer
Entscheidungsdatum
09.11.2009

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Raymond Weil SA v. A., N.,

Case No. D2009-1268

1. The Parties

1.1 The Complainant is Raymond Weil SA of Geneva, Switzerland, represented by Etude Tissot, Switzerland.

The Respondent is A., N., of Hong Kong, Special Administrative Region of China.

2. The Domain Name and Registrar

2.1 The disputed domain name <raymondweil.asia> (the “Domain Name”) is registered with GoDaddy.com, inc. (the “Registrar”).

3. Procedural History

3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2009. On September 25, 2009, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 25, 2009, 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 as appears on its WhoIs database. The Registrar also confirmed that the Domain Name would remain locked pending this administrative proceeding and that the language of the registration agreement was English.

3.2 The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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”).

3.3 In accordance with paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 2, 2009. In accordance with paragraph 5(a) of the Rules, the due date for Response was October 22, 2009. The Respondent did not submit any response. Accordingly, the Center notified the parties of the Respondent's default on October 23, 2009.

3.4 The Center appointed Ike Ehiribe as the sole panelist in this matter on October 28, 2009. 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 paragraph 7 of the Rules.

4. Factual Background

4.1 The Complainant, Raymond Weil SA, is a company registered to the Commercial Register in Geneva since April 18, 1975 and is the owner of the International Trademark RAYMOND WEIL No. 446233 registered on July 11, 1979 and renewed on July 11, 1999. The trademark RAYMOND WEIL is registered in more than ninety countries and is used for and covers horological goods in Class 14 such as watches, watch-movements, watch-cases, watch dials, watch parts, etc. The Complainant is also owner of numerous domain name registrations corresponding to its trademark and name, for instance: < raymondweil.biz>, <raymondweil.net>, <raymondweil.info>, <raymondweil.co.uk>, <raymondweil.us>, and <raymondweil.org>.

4.2 The Respondent registered the Domain Name <raymondweil.asia> with the Registrar on March 26, 2008. On June 10, 2009 and June 26, 2009, the Complainant's attorney sent emails to the Respondent requesting that it transfer or assign the Domain Name to the Complainant. The Respondent failed to respond to both emails. At about the same time, the Complainant discovered the Domain Name redirected to the website “www.investingyourdomain.com”. The Complainant's attorney again sent emails, dated June 17, 2009 and June 23, 2009, to [ ]@investingyourdomain.com requesting the Domain Name be transferred to the Complainant, and there was no response from the Respondent.

5. Parties' Contentions

A. Complainant

5.1 The Complainant contends that its trademark RAYMOND WEIL is well-known throughout the world as the trademark is distributed in more than 100 countries. The Complainant contends further that its trademark RAYMOND WEIL was already recognised in the decision of Raymond Weil SA v. Watchesplanet (M) Sdn Bhd, WIPO Case No. D2001-0601.

5.2 The Complainant submits that the Domain Name <raymondweil.asia> registered by the Respondent is identical to the Complainant's trade name and trademark RAYMOND WEIL in so far as it takes over the whole trademark without any amendment. The Complainant contends further that the Domain Name <raymondweil.asia> is confusingly similar to the trademark RAYMOND WEIL as there exists the risk that Internet users connecting to the website will inevitably believe that they are connecting to one of the official websites of the Complainant. The Complainant argues that nothing is changed by the addition of the word “asia” and refers to the decision in Mediaset S.p.A. v. Antonio Esposito, S.C.A. Service Controll Access, Amata International Network Co. Ltd, WIPO Case No. D2009-0026.

5.3 The Complainant submits that the Respondent has no rights or legitimate interests in respect of the Domain Name, as the Respondent is unknown to the Complainant and the Respondent does not possess a licence or agreement, express or implied, authorising it to use the trademark RAYMOND WEIL or to register it as a domain name. The Complainant also asserts that the Respondent is not an authorised retailer of Raymond Weil watches.

5.4 With reference to registration and use in bad faith, the Complainant submits that the Respondent in full knowledge of the existence of the Complainant's well-known trademark, knowingly registered the Domain Name with the intention of disturbing the Complainant's commercial transactions and with the intention of attracting for commercial gain Internet users to its website.

5.5 In further support of the Respondent's use of the Domain Name in bad faith, the Complainant highlights a number of matters as follows: (i) that the Respondent failed to respond to the emails requesting it to assign or transfer the Domain Name to the Complainant; (ii) the Domain Name was first offered for sale on the website “www.investingyourdomain.com” where numerous domain names in the “.asia” space were proposed for sale; (iii) following the interventions of the Complainant's attorney, the Domain Name resolved to a page that displayed links to websites where numerous competitor's watches, counterfeit Raymond Weil watches and replica watches were offered for sale.

5.6 The Complainant therefore argues that the registration and use of the Domain Name to display pay-per-click links which may direct Internet users, customers and potential customers of the Complainant to the websites of the Complainant's competitors, constitutes bad faith registration and use. The Complainant refers to the decisions in: (i) Washington Mutual, Inc. v. Ashley Khong, WIPO Case No. D2005-0740 and (ii) Turlen Holding SA v. Pemuda Liong Wi Potuan, Gurita.biz/WhoisGuard Protected, WIPO Case No. D2008-0908.

5.7 The Complainant requests a decision that the disputed Domain Name be transferred to it.

B. Respondent

5.8 The Respondent did not reply to the Complainant's contentions and is in default. Therefore, in accordance with paragraphs 14(a) and (b) of the Rules, the Panel shall draw inferences as it considers appropriate from the Respondent's default.

6. Discussion and Findings

6.1 Under paragraph 4(a) of the Policy, to succeed in this administrative proceeding the Complainant must prove: (i) that the Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith.

6.2 As expressly stated in the Policy, the Complainant must establish the existence of each of the three elements in the proceeding.

A. Identical or Confusingly Similar

6.3 The Panel finds on the facts as submitted by the Complainant and unchallenged by the Respondent, that the Domain Name <raymondweil.asia> is identical or confusingly similar to the well-known International Trademark owned by the Complainant. See in this regard the earlier decision in Raymond Weil SA v. Watchesplanet (M) Sdn Bhd, supra, where the disputed domain name in that proceeding, <raymond-weil-watches.com>, was transferred to the Complainant. The Panel is satisfied, as the Complainant contends, that since the Domain Name contains the whole of the Complainant's trademark nothing is changed by the addition of the “asia” gTLD. See in this regard a similar approach in the decision of Mediaset S.p.A. v. Antonio Esposito, S.C.A. Service Controll Access, Amata International Network Co. Ltd, supra, where the disputed domain name <mediaset.asia> was found to be identical or confusingly similar to the well-known trademark owned by Mediaset S.p.A and the panel ordered the transfer of the disputed domain name to that complainant.

6.4 In the circumstances, the Panel finds that the Complainant has established that the Domain Name is identical or confusingly similar to the trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the UDRP Policy.

B. Rights or Legitimate Interests

6.5 The Respondent has failed to provide any evidence or circumstances required to establish that it has rights or legitimate interests in the Domain Name within the ambit of paragraph 4(c) of the Policy. The Complainant contends that the Respondent is totally unknown and that it is not in possession of a licence, or an agreement or consent from the Complainant authorising it to register the trademark RAYMOND WEIL or to use it in the Domain Name. The Complainant also contends that the Respondent is not an authorised retailer of Raymond Weil watches.

6.6 The Panel finds that these are well founded assertions which remain uncontroverted by the Respondent and draws adverse inferences from the Respondent's failure to respond to the Complainant's emails dated June 10, 2009, June 17, 2009, and June 26, 2009 requesting it to transfer the Domain Name to the Complainant. The Panel finds that the repeated failure to respond to those emails clearly demonstrates a lack of rights and legitimate interests in the Domain Name. The Panel therefore concludes, in the light of that failure to respond and the absence of any other representations, that the Respondent has failed to establish: (i) before notice of the dispute it was preparing the Domain Name for use in connection with a bona fide offering of goods or services in consonance with paragraph 4(c)(i) of the Policy; (ii) it had been commonly known by the Domain Name in consonance with paragraph 4(c)(ii) of the Policy; and or (iii) it had made and continued to make a legitimate noncommercial or fair use of the Domain Name in consonance with paragraph 4(c)(iii) of the Policy. In the circumstances, the Panel finds that the Complainant has satisfied the requirement that the Respondent has no rights or legitimate interests in the Domain Name in accordance with paragraph 4(a)(ii) of the Policy. See in this regard Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455, referred to in the WIPO Overview of Panel Views on selected UDRP Questions.

C. Registered and Used in Bad Faith

6.7 As regards bad faith registration the Panel finds without any hesitation that the Respondent registered the Domain Name in bad faith. In arriving at this conclusion the Panel has taken into account the fact that the Complainant has owned its well-known International Trademark since 1979 and also owns numerous domain name registrations corresponding to its trademark and trade name for instance: <raymondweil.biz>, <raymondweil.net>, <raymondweil.info>, <raymondweil.co.uk> and <raymondweil.us>. Furthermore, the Panel has taken into account the fact that the Complainant is regarded worldwide in the specialised horological press as amongst the leaders of Swiss watch companies in terms of sales. Accordingly, the Panel finds that the registration of the Domain Name <raymondweil.asia> was also done with the intention of capitalizing on the Complainant's reputation in order to disturb the Complainant's commercial transactions and attract Internet users to its website for commercial gain.

6.8 The Panel further took into account the Respondent's failure to respond to the emails of June 10, 2009 and June 26, 2009 sent to the Respondent's stated email address at [ ]@aol.com and the emails of June 17, 2009 and June 23, 2009 sent to [ ]@investingyourdomain.com requesting that the Domain Name be transferred to the Complainant. More significantly, the Panel attaches weight to the Complainant's unchallenged assertions that the Domain Name was first offered for sale on the website “www.investingyourdomain.com” and that the Domain Name was latterly discovered to be displaying links whereby Internet users, the Complainant's customers and potential customers, would be directed to the websites of the Complainant's competitors or to websites where counterfeit and replica watches were offered for sale. The Panel therefore concludes that the act of first offering the Domain Name for sale and/or the act of displaying pay-per-click links at the Domain Name which linked to the Complainant's competitor's websites are both indicative of bad faith use. In this regard, the Panel relies on the following decisions in: (i) Washington Mutual, Inc. v. Ashley Khong, supra; and (ii) Turlen Holding SA v. Pemuda Liong Wi Potuan, Gurita.biz/WhoisGuard Protected, supra, where the redirection of disputed domain names to websites offering the goods of the complainant's competitors was found to support findings of bad faith registration and use under paragraph 4(b)(iv) of the Policy.

7. Decision

7.1 For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <raymondweil.asia> be transferred to the Complainant.

Ike Ehiribe
Sole Panelist

Dated: November 9, 2009