Camera Moda S. r L. Unipersonale V. Contact Privacy Inc. Customer 0136965506 / cmri ente No Profit, Matteo Di Furia




Yüklə 32.14 Kb.
tarix11.03.2016
ölçüsü32.14 Kb.


group 2

ARBITRATION
AND
MEDIATION CENTER



ADMINISTRATIVE PANEL DECISION

Camera Moda S.r.l. Unipersonale v. Contact Privacy Inc. Customer 0136965506 / CMRI Ente No Profit, Matteo Di Furia

Case No. D2015-1315


1. The Parties
The Complainant is Camera Moda S.r.l. Unipersonale of Milan, Italy, represented by Studio Legale Withers, Italy.
The Respondent is Contact Privacy Inc. Customer 0136965506 of Toronto, Canada / CMRI Ente No Profit, Matteo Di Furia of Milan, Italy, internally represented.

2. The Domain Name and Registrar
The disputed domain name is registered with Tucows Inc. (the “Registrar”).

3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 29, 2015. On July 29, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 30, 2015, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 30, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 3, 2015.
The Center verified that the Complaint together with the amended 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 6, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 26, 2015. The Response was filed with the Center on August 25, 2015.
The Center appointed Fabrizio Bedarida as the sole panelist in this matter on September 11, 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.
The language of the proceeding is English.

4. Factual Background
The Complainant in this proceeding is Camera Moda S.r.l. Unipersonale, also known as Camera Nazionale della Moda Italiana (National Chamber of Italian Fashion) a non-profit association founded in 1958 in Rome, which disciplines, coordinates, and promotes the development of Italian fashion worldwide. Since its establishment, Camera Nazionale della Moda Italiana has been the self-regulatory body to which all the Italian Fashion houses adhered spontaneously. Among its associates there are some of the most well-known fashion brands that represent the Italian style in the world such as: Valentino, Tod’s, Trussardi, Ferragamo, Sergio Rossi, Cavalli, Prada, Max Mara, Moncler, Missoni and Costume National. It also organizes one of the main fashion events worldwide, the Milan Fashion Week, thanks to which the Complainant has acquired a strong reputation and its “Camera Moda” trademark is well-known.
In addition to its company name Camera Moda S.r.l., the Complainant is the owner, among others, of the following registered trademarks:
Italian Trademark CAMERA MODA first filed on July 19, 2002 and renewed on May 30, 2012 – registration No. 0001493662;
Italian Trademark CAMERA MODA UOMO first filed on October 3, 2000 and renewed on January 10, 2011 – registration No. 0001398027; and
Italian Trademark CAMERA MODA DONNA first filed on October 3, 2000 and renewed on January 10, 2011 – registration No. 0001398026.
The Complainant also owns the following domain names:
, registered since April 13, 1999; and
, registered since January 26, 2000.
The Complainant’s trademark registrations long predate the registration of the disputed domain name, which was registered on March 11, 2014.
On the website corresponding to the disputed domain name contents advertising the activities of Camera Regionale della Moda Italiana (Regional Chamber of the Italian Fashion) are displayed.

5. Parties’ Contentions
A. Complainant
The Complainant claims that the disputed domain name is identical to the Complainant’s CAMERA MODA registered trademark; that the Respondent has no rights or legitimate interests with respect to the disputed domain name; and that the Respondent registered and is using the disputed domain name in bad faith.

B. Respondent
The Response was submitted by CRMI - Camera Regionale della Moda Italiana, represented by its President, M. Orsini, who specified that the “real” owner of the disputed domain name is “CRMI Nonprofit Organization” of Milan, Italy.
The Respondent submitted the Response in some parts in English and in others (the “legal defense”, i.e., the Response to the statements and allegations made in the Complaint) in Italian.
In section 3 of its Response, the Respondent requests the Panel to reject the Complaint. However, the Panel notes this is inconsistent with section 7 of the Response, where the paragraph regarding the “Consent to Remedy (optional)” was left in and appears to indicate that the Respondent gives its consent to the remedy requested by the Complainant.
In any event, the Panel notes the content of the Response, in which the Respondent affirms to be entitled to register the disputed domain name because: a) it corresponds to some of the words contained in its association’s name “Camera Regionale della Moda Italiana”; b) the Respondent is a non-profit entity which promotes cultural values related to the fashion world; and c) therefore it has a legitimate activity.

6. Discussion and Findings
6.1. Procedural matters – Language of the Proceeding
Although the language of the Registration Agreement is English, the Response has been filed partially in Italian.
In addition, the Respondent has not given any explanation nor requested a change of language from English to Italian.
Owing to the fact that both Parties are Italian, the Panel considers that accepting the Response in Italian is not detrimental to the rights of the Complainant. Moreover, requesting an English translation would only delay the proceeding with no substantial benefit for the Parties and/or for the procedure.
Therefore, the Panel accepts the Response as-is and confirms English to be the language of the proceeding.
6.2. Substantive Issues
In order for the Complainant to obtain a transfer of the disputed domain name, the Policy paragraphs 4(a)(i) to (iii) of the Policy require that the Complainant demonstrate to the Panel that:
(i) The disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel finds the Complainant has established it has rights to the CAMERA MODA registered trademark. The disputed domain name is clearly identical to the Complainant’s CAMERA MODA trademark save for the “.org” generic Top-Level Domain (“gTLD”).
Therefore, the Panel finds the disputed domain name to be identical or confusingly similar to the trademark CAMERA MODA in which the Complainant has rights.
Accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant claims that the Respondent has no connection or affiliation with the Complainant and the Complainant has not licensed or otherwise authorized the Respondent to use or register any domain name incorporating the Complainant’s trademark. The Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name, nor any use in connection with a bona fide offering of goods or services for the reasons described in section 6.C. below. Moreover, the Respondent never substantively replied to the warning letters sent by the representatives of the Complainant, alleging any rights or legitimate interests in the disputed domain name. Therefore, the Panel is satisfied that the Complainant has made out a prima facie case that the Respondent does not have rights or legitimate interests in the disputed domain name.
The Panel has noted the Response, as summarized in section 5.B above, in which the Respondent affirms to be a non-profit association with a legitimate right to register and use the disputed domain name by virtue of its association’s name “Camera Regionale della Moda Italiana” (in short CRMI), which contains the words composing the disputed domain name.
Although the Panel is not in a position to question the existence of “Camera Regionale della Moda Italiana” or “CRMI”, its activity and/or its eventual links with CMRI Ente No Profit, Matteo Di Furia, the Respondent’s claims, unsupported by sufficient documentation, do not allow the Panel to find that the Respondent has rebutted the Complainant’s prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.
The Panel notes that the Respondent might have argued that the disputed domain name is composed of 2 (two) dictionary words, i.e.camera” (which means chamber, guild in Italian) and “moda” (which means fashion) and that it is using the disputed domain name for an activity that relates to these meanings. However, the Panel finds that the Complainant’s trademark is well-known in Italy, where both Parties are located, therefore, the Respondent’s activity, which is in the same area of the Complainant (i.e. promoting the Italian fashion and the initiatives of its associates), cannot be considered as conferring rights or legitimate interests to the Respondent in the disputed domain name. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) paragraph 2.2.
Moreover, the Panel agrees with the Complainant’s substantiated contentions that the Respondent is acting in several respects as the Complainant, up to the point that it is using the same document used by the Complainant for communicating the amounts to be paid by the associates for the year 2014 and even refer itself as C.N.M.I, which is the acronym of the Complainant (Camera Nazionale della Moda Italiana).
In addition, it appears that the Respondent not only used a privacy shield for the registration of the disputed domain name but that it also provided incorrect (or at least not updated) information regarding its contact details on its website, as indicated in the Complaint and evidenced by annex 7 thereto.
As an example, it results that the warning letter sent via registered mail to the address provided by the Respondent on its website was returned to the Complainant with the note “destinatario sconosciuto” (addressee not known). Furthermore, it appears that also the Written Notice communication that the Center sent by courier to notify the Complaint to the Respondent’s address as verified by the Registrar and confirmed by the Respondent was not delivered due to a “wrong address”. Finally, also the Respondent’s email address “for the press” appears not to be working.

Moreover, from the website at the disputed domain name indicated by the Respondent in its Response as a source for further information, it appears that: a) the association’s mark is “CRMI” and device and not “camera moda”; b) the organization chart of CRMI available on said website shows the name of its President which is different from that of M. Di Furia (indicated in the WhoIs as the registrant name of the disputed domain name) and from M. Orsini, who claimed (in the Response) to be the President of Camera Regionale della Moda Italiana; and c) the address for CRMI indicated in its own statute is in Florence or else in Tuscany, and not in Milan, as confirmed by the Registrar and the Respondent.


For all the above, the Panel finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.


        1. C. Registered and Used in Bad Faith

The Panel notes the following:


The Respondent, who itself affirms to be active in the same field as the Complainant, could not ignore the Complainant and its renowned activity and trademarks, when it registered the disputed domain name. In fact, the chances that the Respondent, who apparently is also located in Milan, was not aware of the Complainant or of the events organized by the same, such as the Milan fashion week, are at best not credible.
The Respondent ignored the first warning letter sent by the representatives of the Complainant and then, on receipt of a second cease-and-desist letter, delayed the matter, by announcing a response that never arrived.
The Respondent used a privacy shield service for the registration of the disputed domain name. In addition, it appears that it provided incorrect (or at least not updated) information regarding its contact details on its website, as noted above in section 6.B.
In its Response, the Respondent affirms to be entitled to register the disputed domain name because: a) it corresponds to some of the words contained in its association’s name “Camera Regionale della Moda Italiana”; b) the Respondent is a non-profit entity which promotes cultural values related to the fashion world; and c) therefore it has a legitimate activity.
However, the Respondent has not sufficiently documented its assertions; has not explained why it did not substantively reply to the warning letters of the Complainant; has not explained why it chose to use the CAMERA MODA trademark and name instead of using “Camera Regionale della Moda Italiana” or “CRMI”; and has not explained why it provided contact details that at best are not updated.
Owing to the above elements, and considering that the Complainant’s trademarks have been registered and extensively used for many years and thus long predate the disputed domain name registration, and in the absence of contrary evidence, the Panel, on the balance of probabilities, finds that the Respondent must have had knowledge of the Complainant’s trademarks at the time of the registration of the disputed domain name, that it deliberately intended to create an association with the Complainant and its business, and that the use of the disputed domain name to divert Internet traffic to the Respondent’s website falls within the example of bad faith set out in 4(b)(iv) of the Policy: “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”
For all the above and for the reasons expressed in the previous paragraph, the Panel finds on the basis of the evidence presented, that the Respondent registered and is using the disputed domain name in bad faith.
Therefore, the Complainant has satisfied paragraph 4(a)(iii) of the Policy.
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.

Fabrizio Bedarida

Sole Panelist



Date: September 24, 2015



Verilənlər bazası müəlliflik hüququ ilə müdafiə olunur ©azrefs.org 2016
rəhbərliyinə müraciət

    Ana səhifə