Arbitration and mediation cente administrative panel decision



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ARBITRATION
AND
MEDIATION CENTE



ADMINISTRATIVE PANEL DECISION

Swarovski Aktiengesellschaft v. Eva Brown



Case No. D2014-1146

1. The Parties
The Complainant is Swarovski Aktiengesellschaft of Triesen, Liechtenstein, represented by LegalBase (Pvt) Limited, Sri Lanka.
The Respondent is Eva Brown of Guangzhou, China.

2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 2, 2014. On July 2, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 2, 2014, 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.
The Center verified that the 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 July 7, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 27, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 28, 2014.
The Center appointed Nicoletta Colombo as the sole panelist in this matter on August 4, 2014. 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
The Complainant uses the SWAROVSKI trademark in connection with crystal jewellery stones and crystalline semi-finished goods for the fashion, jewellery, home accessories, collectibles, and lighting industries.
Swarovski is the world’s leading producer of cut crystal, genuine gemstones and created stones with production facilities in 18 countries, distribution to 42 countries and a presence in more than 120 countries. The Swarovski Group’s approximate worldwide revenue in 2012 was EUR3.08 billion.
The Complainant has registered the trademark SWAROVSKI as word and figure marks in several classes in several countries all over the world, including China. The Complainant has also registered the trademark SWAROVSKI as a domain name including the extension “.com” and “.net” which point to Swarovski’s official website.
The Domain Name was registered on November 29, 2013 and it directs consumers to an online shop where are offered for sale a number of purported Swarovski products displaying content in the English language.

5. Parties’ Contentions
A. Complainant
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are applicable to the Domain Name.
The Complainant contends the following:
- the Domain Name is confusingly similar to the Complainant’s trademark;
- the addition of the terms “outlet” and “shop” does not lessen the confusing similarities between the Domain Name and the Complainant’s trademark;
- the Respondent has no rights or legitimate interests in the Domain Name, has no connection or affiliation with Swarovski and has not received any license or consent, express or implied, to use the SWAROVSKI trademark in a domain name or in any other manner;
- the Respondent has not been commonly known by the Domain Name and the Respondent has no legitimate interest in the SWAROVSKI trademarks or the name “Swarovski”;
- at the time of the registration of the Domain Name, the Respondent was surely aware of the trademarks of the Complainant;
- the selection of the Domain Name, which wholly incorporates the SWAROVSKI trademark, cannot be a coincidence; SWAROVSKI is not a descriptive or generic term because it is a famous and well-known trademark;
- the Respondent is not using the Domain Name in connection with a bona fide offering of goods or services. The Domain Name is currently connected to a website which offers for sale a variety of Swarovski products. Moreover, the section “About Us” states “Our website is a professional online shopping website for Swarovski items. We offer quality fashional and beautiful products at affordable price for global buyers” even if the Respondent is not an authorized seller of Swarovski products, and Swarovski does not guarantee the authenticity or quality of the products that are being sold on this website.

B. Respondent
The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings
A. Identical or Confusingly Similar
The Domain Name incorporates the word “swarovski” which constitutes the Complainant’s trademark and its company name.
The only difference between the Domain Name and the trademark of the Complainant is the addition of the generic terms “outlet” and “shop”. The addition of the mentioned words does not add a distinctive element to the Domain Name and does not render it dissimilar to the trademark of the Complainant. It is well established that the addition of generic words to a trademark does not prevent confusingly similarity (see e.g. Swarovski Aktiengesellschaft v. Ming Robot, WIPO Case No. D2012-1200; Swarovski Aktiengesellschaft v. flushy, flushy kitty, WIPO Case No. D2012-0898; Carlsberg A/S v. Personal / decohouse, decohouse, WIPO Case No. D2011-0972; BP p.l.c. v. Kang-Sungkun Portraits Production, WIPO Case No. D2001-1097; Rolls-Royce PLC v. Hallofpain, WIPO Case No. D2000-1709 and The Nasdaq Stock Market, Inc. v. Vidudala Prasad, WIPO Case No. D2001-1493).
Additionally, the Panel does not consider, when analyzing the identity or similarity, the generic Top-Level Domain (“gTLD”) suffix-in this case “.com”-because it is a necessary component of the Domain Name and typically does not give any distinctiveness (see i.e., Crédit Industriel et Commercial SA v. Name Privacy, WIPO Case No. D2005-0457).
There are numerous UDRP decisions stating that confusing similarity, for the purposes of the Policy, is established, inter alia, when a domain name wholly incorporates a complainant’s mark and only adds a generic word along with it (see i.e., F. Hoffmann-La Roche AG v. Bobik Marley, WIPO Case No. D2007 0694; Deceininck NV, Thyssen Polymer GmbH v. Beloussov Dimitriy, WIPO Case No. D2007-0347; Société des Bains de Mer et du Cercle des Etrangers à Monaco v. LaPorte Holdings, LLC., WIPO Case No. D2005-0526).
Therefore, the Panel finds that the Domain Name is confusingly similar to the Complainant’s trademark.
B. Rights or Legitimate Interests
The Complainant has several trademark registrations for SWAROVSKI, which is also its company name. Therefore, it has been proven that the Complainant has rights in the SWAROVSKI trademark.
The Respondent has not filed any response in this case. There is a prima facie case made by the Complainant with the evidence provided to the Panel that the Respondent has no rights or legitimate interests in the Domain Name (Société des Bains de Mer et du Cercle des Etrangers à Monaco v. Grande Media, WIPO Case No. D2007-0840; and UPIB, Inc. v. Texas Internet, WIPO Case No. D2004-0073).
Moreover, the Complainant has not licensed or otherwise permitted or authorized the Respondent to use its trademark SWAROVSKI, nor has the Respondent been authorized to register and use the Domain Name.
Under these circumstances, the Panel finds that the Respondent has no rights or legitimate interests in registering the Domain Name.


C. Registered and Used in Bad Faith
Based on the evidence presented by the Complainant, the Panel considers that the Respondent registered and used the Domain Name in bad faith.
As sufficient evidence of registration in bad faith, the Panel finds that the Respondent registered the Domain Name (which corresponds to a widely known trademark with the addition of the generics terms “outlet” and “shop”) most probably with knowledge of the Complainant’s rights. The Complainant’s trademark is for sure well known also in China, where the Respondent appears to be located. Therefore, only someone who was familiar with the Complainant’s marks would have registered the confusingly similar Domain Name (see Aventis, Aventis Pharma SA. v. John Smith, WIPO Case No. D2004-0850; AT&T Corp. v. Xinzhiyuan Management Consulting Co., Ltd., WIPO Case No. DCC2004-0001; British Sky Broadcasting Group plc, v. Mr. Pablo Merino and Sky Services S.A, WIPO Case No. D2004-0131; Deutsche Telekom AG v. Britt Cordon, WIPO Case No. D2004-0487).
There is no information as to the business activity of the Respondent that would justify the registration and the use of the Domain Name; nor is there evidence of any rights or legitimate interests in said Domain Name by the Respondent. The Panel believes that, in the absence of any rights or legitimate interests and in the absence of any contrary evidence from the Respondent, the Respondent’s registration of the Domain Name confusingly similar to the Complainant’s trademark was done in bad faith (see Accor v. Howell Edwin, WIPO Case No. D2005-0980; Ferrero S.p.A. v. Publinord S.r.l., WIPO Case No. D2002-0395; Banca Sella S.p.A. v. Mr. Paolo Parente, WIPO Case No. D2000-1157; Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226).
The Domain Name appears to be connected to a website offering for sale a variety of purported Swarovski products without informing the Internet users that it is not related in any way to the Complainant. The Panel is of the opinion that the Respondent has registered the Domain Name with the intent to profit from the reputation of the famous trademark of the Complainant to attempt to attract, for commercial gain, Internet users to the website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website (see Swarovski Aktiengesellschaft v. putian coco kiss, WIPO Case No. DCC2012-0001, “By registering and using the disputed domain name incorporating the well-known and well-established registered trademark SWAROVSKI, the effect is to mislead Internet users and consumers into thinking that the Respondent is, in some way or another, connected to, sponsored by or affiliated with the Complainant and its business; or that the Respondent’s activities are approved or endorsed by the Complainant. None of which the Panel can find, on the basis of the record in the Case File, is, in fact, the situation. Such misleading consequences, in the view of the Panel, are indicative of bad faith on the part of the Respondent.”)
Taken together with the fact that the Respondent has not filed any Response in this proceeding in support of any good faith registration or use, the Panel believes that the Complainant has demonstrated that the disputed Domain Name has been registered and is being 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 Domain Name be transferred to the Complainant.

Nicoletta Colombo

Sole Panelist



Date: August 14, 2014



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