Westmore · UDRP DecisionSwarovskiindias.com
The Panel ordered transfer of <swarovskiindias.com>. It found the domain confusingly similar to the Complainant’s SWAROVSKI trademark because adding the geographic term “India,” the letter “s,” and the “.com” gTLD did not distinguish it. The Respondent lacked rights or legitimate interests because the domain was used commercially to advertise and sell purported Swarovski products without authorization or any indication that the website was independent from the Complainant. The Panel found bad-faith registration and use because the Respondent knew or should have known of the distinctive and reputed SWAROVSKI mark and intentionally used the domain to attract Internet users for commercial gain through likely confusion.
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The case illustrates how a domain combining a distinctive trademark with a geographic term and a minor additional letter may remain confusingly similar. It also shows the importance of the associated website’s presentation: commercial sales of purported trademarked goods, repeated use of the mark, and failure to disclose independence from the trademark owner were central to both the legitimate-interest and bad-faith findings.
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. D2014-1154 1. The Parties The Complainant is Swarovski Aktiengesellschaft of Triesen, Liechtenstein, represented by LegalBase (Pvt) Limited, Sri Lanka. The Respondent is Tian Qing of Beijing, China. 2. The Domain Name and Registrar The disputed domain name <swarovskiindias.com> (“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 3, 2014. On July 3, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 3, 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 29, 2014. The Center appointed Christian Gassauer-Fleissner as the sole panelist in this matter on August 12, 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 manufactures and sells products using cut crystal, gemstones and crystal stones. It is the owner of a large number of trade mark registrations for the name SWAROVSKI around the world, including the word trademark SWAROVSKI No. 384001 for China, registered on July 30, 1987, and No. 489520 for India, registered on April 20, 1988. The Complainant is also the owner of a number of domain names, including <swarovski.com> and <swarovski.net>, that all contain the Complainant’s trade mark SWAROVSKI. The Respondent registered the Domain Name <swarovskiindias.com> on January 11, 2014. 5. Parties’ Contentions A. Complainant The Complainant contends that it 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. It has registered its trademark SWAROVSKI globally, with selected trade mark registrations for China and India. Among others are the word trade mark SWAROVSKI, No. 384001 for China and the word trade mark SWAROVSKI, No. 489520, for India. Substantial time, money and effort are being spent for advertising and promoting the trade mark in China, India and worldwide. An enormous amount of goodwill is said to be developed in the trade marks. As a consequence the trade mark has gained international reputation, also in China and India, and is said to be famous. An array of domain names like <swarovski.com> and <swarovski.net> have been registered with it as well. The Complainant states that (in accordance with paragraph 4(a) of the Policy) the Respondent is operating a website under the Domain Name which contains an online shop offering for sale various purported Swarovski products that contain the SWAROVSKI mark. The Complainant contends that the disputed Domain Name is confusingly similar with the SWAROVSKI trade mark in which the Complainant has rights, that the Respondent has no rights or legitimate interests in the Domain Name and that the Respondent registered and used the Domain Name in bad faith. The Complainant claims that the suffixes “india” and “s” as an addition of geographical name or indicator does not serve to differentiate the Domain Name from the Complainant’s trademark among consumers or lessen the similarity between the Domain Name and the Complainants mark. The Complainant emphasizes that coupling a common word with the Complainant’s mark or even a word similar to the Complainant’s mark in a domain name does not negate a finding of confusing similarity. The Respondent is said to have applied an initial interest confusion to exploit the Complainant’s goodwill in the SWAROVSKI trade mark and to divert Internet traffic to the Respondent’s website. The Respondent is said to have no rights or legitimate interests in the Domain Name, to have no connection or affiliation with Swarovski and that it has not received any license or consent, express or implied, to use the SWAROVSKI mark in a domain name or in any other manner. The Complainant claims that the Respondent has registered and used the Domain Name in bad faith because it was registered with the knowledge of the Complainant’s rights, as the Complainant’s trademark is well known in India, China and worldwide and as no real steps have been taken to prevent the risk of confusion. SWAROVSKI could not be considered a generic or descriptive term so that the wide recognition, fame and reputation of the Complainant’s mark is persuasive in determining the Respondent’s bad faith intent. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under the Policy, the Complainant must prove with respect to the Domain Name that: (i) the Domain Name is identical or confusingly similar to a trademark or service mark in which it has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. The Panel is satisfied that the Center employed reasonably available means to notify the Respondent of the Complaint and initiation of these proceedings and that the failure of the Respondent to furnish a Response to the Complaint within the time period established by the Rules is not due to any omission by the Center. There is sufficient evidence in the case file for the Panel to conclude that the Center complied with its obligations under the Rules, paragraph 2(a). In case of default, under paragraph 14(a) of the Rules, “the Panel shall proceed to a decision on the complaint”, and under paragraph 14(b) of the Rules, “the Panel shall draw such inferences as it considers appropriate”. Furthermore, paragraph 15(a) of the Rules provides that “Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. Since the Respondent has not submitted any evidence, the Panel will render its decision on the basis of the uncontroverted evidence supplied by the Complainant. A. Identical or Confusingly Similar As stated by previous UDRP panel decisions, see Swarovski Aktiengesellschaft v. John Zamora , WIPO Case No. D2013-1857 , the Complainant’s trademark is wellknown. There is an array of registered trademarks containing the name SWAROVSKI. The Domain Name involves the addition of a country’s name to the trade mark combined with the suffix “s” and the necessary generic Top-Level Domain (“gTLD”) “.com”. The above mentioned UDRP panel has as well as other panels found that the addition of a geographical name or indicator and a letter to a trademark, in particular to the SWAROVSKI trademark, does not serve to differentiate the Domain Name from the Complainant’s trade mark. For these reasons and because there is no converse evidence submitted by the Respondent, the Panel concludes that the Domain Name is confusingly similar to the Complainant’s trade mark. B. Rights or Legitimate Interests The Respondent does not bear the name “Swarovski” and does not appear to engage in a legitimate trade under that or any related name. There is no evidence that the Respondent holds a license or is otherwise authorized to use the Complainant’s trademark. The Domain Name is being used to advertise and sell purported Swarovski products and the Domain Name misdirects internet traffic to the Respondents website. The Respondent uses the SWAROVSKI trademark throughout the website, and has done nothing to identify itself as being independent from the Complainant. Such a use is contrary to a bona fide offering of goods or services or a legitimate interest. For these reasons and because the Respondent is not making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert Internet users to its website in accordance with paragraph 4(c)(iii) of the Policy, the Panel concludes that the Respondent has no rights or legitimate interests in respect to the disputed Domain Name. C. Registered and Used in Bad Faith The Respondent clearly knew or should have known of the existence of the Complainant’s trade mark SWAROVSKI, as already stated above, is not a generic term but distinctive trade mark, which even enjoys a reputation in many countries of the world, including India. It is not to be assumed that the Respondent offers and sells products bearing the trade mark SWAROVSKI, without knowing of this trade mark. Given the fact that there is no indication that the Domain Name was ever used for any other purpose and considering the reputation of the trade mark SWAROVSKI the Panel does not doubt that this use was already intended at the time of registration. The Respondent has by using the Domain Name intentionally attempted to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website and of the products or service on the website. The Respondent is still using the Domain Name to sell what purport to be the Complainant’s products. For these reasons, the Panel concludes that the Respondent registered and is using the Domain Name 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 <swarovskiindias.com> be transferred to the Complainant. Christian Gassauer-Fleissner Sole Panelist Date: August 26, 2014
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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