Westmore · UDRP DecisionSwarovskisaustralia.com
The Panel ordered transfer of <swarovskisaustralia.com>. It found the domain confusingly similar to the Complainant’s SWAROVSKI trademark because it incorporated the mark in full with the nondistinctive geographic suffix “Australia.” The Respondent lacked rights or legitimate interests because it was unauthorized, was not commonly known by the domain, and used it for an online shop offering purported Swarovski products while creating the impression of an official Swarovski website. The Panel also found registration and use in bad faith because the Respondent knew of the well-known mark and intentionally attracted Internet users for commercial gain through likely confusion.
The timeline behind swarovskisaustralia.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind swarovskisaustralia.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates a straightforward geographic-term and unauthorized-online-shop fact pattern. Adding “Australia” did not distinguish a domain that reproduced the SWAROVSKI mark in full. More importantly, commercial sales activity did not establish a legitimate interest where the site was unauthorized and presented itself in a manner that the Panel found appeared official. The same website evidence supported both the rejection of a bona fide offering and the finding of intentional commercial confusion.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Swarovski Aktiengesellschaft v. Tian Qing Case No. D2014-0247 1. The Parties The Complainant is Swarovski Aktiengesellschaft of Triesen, Liechtenstein, represented by LegalBase (Pvt) Limited, Sri Lanka. The Respondent is Tian Qing of Tiananmen, Beijing, China. 2. The Domain Name and Registrar The disputed domain name <swarovskisaustralia.com> is registered with GoDaddy.com, LLC. 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 18, 2014. On February 18, 2014, the Center transmitted by email to GoDaddy.com, LLC a request for registrar verification in connection with the disputed domain name. On February 18, 2014, GoDaddy.com, LLC 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 February 25, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 17, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 31, 2014. The Center appointed Erica Aoki as the sole panelist in this matter on March 31, 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. The language of the administrative proceeding is English. 4. Factual Background The Complainant 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 Respondent registered the disputed domain name on January 11, 2014 and is operating an online shop in the English language. The website at the disputed domain name offers for sale various purported Swarovski products e.g ., “Swarovski Bangles”, “Swarovski Beads”, “Swarovski Bracelets” and more. 5. Parties’ Contentions A. Complainant In 2012, the Complainant’s products were sold in 1250 of its own boutiques and through 1100 partner-operated boutiques worldwide. The Complainant Group’s approximate worldwide revenue in 2012 was EUR 3.08 billion. The Complainant spends substantial time, effort and money advertising and promoting the SWAROVSKI Marks in China, Australia and worldwide. As a result, the SWAROVSKI Marks have become famous and well known in China and Australia. The Complainant has developed an enormous amount of goodwill in the SWAROVSKI Marks internationally, and the public has come to associate the SWAROVSKI Marks exclusively with high quality items marketed by the Complainant. The Complainant asserts that the disputed domain name is identical or confusingly similar to the Complainant’s trademark, that the Respondent has no rights or legitimate interests in the disputed domain name and that the Respondent registered and is using the disputed domain name in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In this Panel’s view, the Complainant has satisfied the requirements specified under paragraph 4(a) of the Policy: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar Based on the facts presented by the Complainant, this Panel finds that the disputed domain name is confusingly similar to a mark in which the Complainant has rights under paragraph 4(a)(i) of the Policy. The Panel finds that there is no doubt that the disputed domain name is confusing similar to the Complainant’s registered trademark, as the disputed domain name includes the Complainant’s SWAROVSKI marks in full with the addition of the nondistinctive suffix “Australia”. B. Rights or Legitimate Interests The Panel finds the following on the record in these Policy proceedings: - The Respondent is in default and thus has made no affirmative attempt to show any rights or legitimate interests in the disputed domain name; - The Policy indicates that a registrant may have a right or legitimate interest in a domain name if it was making use of the domain name in connection with a bona fide offering of goods or services prior to notice of the dispute; - The Respondent’s knowledge of the Complainant’s right is presumed since it is a well-known trademark; - The Respondent is in no way connected with the Complainant and has no authorization to use any of the Complainant’s trademarks; and - There is no evidence that the Respondent is or was commonly known by the disputed domain name as an individual, business or other organization. Thus, in this Panel’s view, the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. There is no evidence of the Respondent’s use of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. The website at the disputed domain name offers for sale purported Swarovski products and creates the impression that it is an official Swarovski website. Further, the Panel notes that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use activity. The Panel therefore finds that the Respondent has no rights or legitimate interests in the disputed domain name, under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith under paragraph 4(b)(iv) of the Policy and that the Respondent is using the disputed domain name intentionally to attempt to attract, for commercial gain, Internet users to the Respondent’s website or other online location by creating a likelihood of confusion with the Complainant’s mark. In this Panel’s view, there is no doubt that the Respondent was aware of the Complainant’s rights in SWAROVSKI mark at the time the disputed domain name was registered, indicating in the circumstances of this case that such registration was made in bad faith. Based on that evidence, the Panel finds that the Respondent registered and used the disputed domain name with the intention of attracting, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark. Also, based on the undisputed allegations, the registration and use of the disputed domain name by the Respondent is in order to divert Internet users seeking information about the Complainant. Accordingly, and as also supported by the Panel’s findings above under the second element of the Policy, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith under 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 <swarovskisaustralia.com> be transferred to the Complainant. Erica Aoki Sole Panelist Date: April 9, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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