Westmore · UDRP DecisionAquatimer.com
The Panel ordered transfer of aquatimer.com after finding all three UDRP elements established. The domain incorporated the Complainant’s registered AQUATIMER mark in its entirety and resolved to a commercial page containing sponsored links referencing IWC products and a statement that the domain was for sale. Although the Respondent did not file a formal Response and later consented to transfer, the Complainant declined to suspend the proceeding, and the Panel issued a decision on the merits.
The timeline behind aquatimer.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 aquatimer.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates that a panel may proceed to a full merits decision despite a respondent’s consent to transfer when no prompt settlement or completed transfer occurs. It also demonstrates the evidentiary significance of a landing page whose sponsored links specifically reference the complainant’s products: those links supported an inference of awareness and intentional commercial targeting rather than incidental registration.
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 Richemont International S.A. v. Buydomains.com, This Domain for Sale Toll Free: 866-822-9073 Worldwide: 339-222-5132 Case No. D2016-1939 1. The Parties The Complainant is Richemont International S.A of Bellevue, Switzerland, internally-represented. The Respondent is Buydomains.com, This Domain for Sale Toll Free: 866-822-9073 Worldwide: 339-222-5132 of Waltham, Massachusetts, United States of America (“United States”). 2. The Domain Name and Registrar The disputed domain name <aquatimer.com> is registered with eNom, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 23, 2016. On September 23, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 23, 2016, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 28, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 18, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 19, 2016. The Center received an informal email communication from the Respondent on October 20, 2016 stating that it had decided to transfer the disputed domain name to the Complainant. On October 21, 2016, the Center advised the Parties of the possibility for suspending the proceeding to explore settlement and stated that if the Parties wished to explore settlement, the Complainant should submit a request for suspension by October 26, 2016. On October 28, 2016, the Complainant indicated it did not intend to suspend the proceeding. On the same day, the Center notified the Parties of the commencement of panel appointment. The Center appointed C. K. Kwong as the sole panelist in this matter on November 7, 2016. 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 is the owner of numerous trademark registrations consisting of or comprising the word “aquatimer”, including: (a) Swiss trademark registration no. P-521742 for the mark AQUATIMER registered on May 24, 2004; and (b) United States trademark registration no. 2959957 for the mark AQUATIMER registered on June 7, 2005, both covering goods under international class 14. The uncontradicted evidence produced by the Complainant shows that the Complainant’s first registration of the aforesaid AQUATIMER mark occurred before the registration of the disputed domain name embodying the word “aquatimer” by the Respondent on September 5, 2004. Other than the particulars shown on the printout of the WhoIs database searches conducted by the Complainant (as provided in Annex 1 of the Complaint) and the website to which the disputed domain name resolves provided by the Complainant (Annex 6 of the Complaint), there is no other evidence or information in the case file concerning the background of the Respondent. 5. Parties’ Contentions A. Complainant The Complainant has made the following contentions: (1) The Complainant and its affiliated companies and/or predecessor in interest (“the IWC Group”) tracing their origin back to 1868 own the brand IWC Suhauffausen (“IWC”), a premium brand in the international luxury watch segment. A line of their watches is identified by the trademark AQUATIMER. (2) All genuine IWC watches including the AQUATIMER watches, are distributed through a worldwide network of IWC boutiques and authorized IWC retailers. There are currently over 150 authorized IWC retailers worldwide. (3) The Complainant operates a website “www.iwc.com” featuring information regarding IWC’s products and services, including its AQUATIMER watch. (4) Due to the extensive use and registration of the AQUATIMER mark, it has become famous in the United States and Switzerland. (5) The AQUATIMER mark and the disputed domain name are identical or confusingly similar. (6) The Respondent has no rights or legitimate interests in the disputed domain name. It has never used any trademark or service mark similar to the disputed domain name by which it may have come to be known to others. (7) The Respondent has never operated any bona fide or legitimate business under the disputed domain name and is not making a noncommercial or fair use of the same. The disputed domain name resolves to a webpage with “pay-per-click” advertisement featuring competing goods/services and a statement that the disputed domain name is for sale. (8) The Complainant has not granted the Respondent any license, permission or authorization to own or use any domain name that is confusingly similar to the AQUATIMER mark. (9) The Respondent registered the disputed domain name with either actual or constructive knowledge of the Complainant’s rights in the AQUATIMER mark. (10) A preliminary trademark search would have revealed the Complainant’s various AQUATIMER trademark registrations and the websites featuring the Complainant’s Aquatimer watch. B. Respondent The Respondent has not filed a response to the Complainant. Instead, by its email to the Center on October 20, 2016 the Respondent stated the following: (1) They apologized for the miscommunication. (2) They had decided to transfer the disputed domain name to the Complainant. (3) They requested transfer instructions to facilitate. 6. Discussion and Findings 6.1 The Respondent’s consent to transfer A number of approaches which various UDRP panels have adopted in dealing with cases where the respondent has expressed its consent to transfer the domain names in question to the complainant were summarized under paragraph 4.13 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”). They depend on the circumstances of the case especially those surrounding (a) the acquisition of the domain name in question, (b) the use of such domain name, (c) the clarity of the consent and (d) the parties’ conduct. In the absence of a prompt settlement being reached between the Parties with the disputed domain names being transferred to the Complainant which would then only require a formal order for the present administrative proceedings to be formally terminated, this Panel considers that it is appropriate to proceed and render a decision on the merits under the circumstances of this case. 6.2 Substantive Issues In rendering its decision, the Panel must adjudicate the dispute in accordance with paragraph 15(a) of the Rules which provides that, “[t]he 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”. According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to each of the disputed domain names, the Complainant must prove each of the following, namely 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 was registered and is being used in bad faith. The said three elements are considered below. A. Identical or Confusingly Similar On the evidence available before the Panel, it has no hesitation in finding that the Complainant has rights in the trademark AQUATIMER by reason of the trademark registrations as recited in Section 4. above. It is a well-established practice to disregard the generic Top-Level Domain (“gTLD”) part of a domain name, such as “.com” when assessing whether a domain name is identical or confusingly similar to the mark in issue. Société Anonyme des Eaux Minerales d’Evian and Société des Eaux de Volvic v. Beroca Holdings B.V.I. Limited , WIPO Case No. D2008-0416 . The Panel finds that the disputed domain name <aquatimer.com> embodying the Complainant’s AQUATIMER trademark in its entirety with the addition of the said gTLD is insufficient to distinguish it from the Complainant’s trademark AQUATIMER. The disputed domain name is identical or confusingly similar to the Complainant’s trademark AQUATIMER. Accordingly, the first element of paragraph 4(a) of the Policy is established in respect of the disputed domain name. B. Rights or Legitimate Interests The Complainant needs to establish a prima facie case showing that the Respondent has no rights or legitimate interests in respect of the disputed domain name. See Croatia Airlines d.d. v. Modern Empire Internet Ltd. , WIPO Case No. D2003-0455 . Once such prima facie case is made, the burden of production will shift to the Respondent to come forward with cogent submissions and evidence demonstrating that it has rights or legitimate interests in the disputed domain names. In the present case, the Complainant has asserted registration and use of the registered trademark AQUATIMER as set out in Section 4. above in connection with its goods before the Respondent’s registration of the disputed domain name. The Complainant has confirmed that the Respondent is not a licensee or authorized party of the Complainant. The Respondent was not authorized to register or use the disputed domain name. There is also no evidence to suggest that the Respondent is commonly known by the disputed domain name. The Respondent also conceded in its email of October 20, 2016 that it has decided to transfer the disputed domain name to the Complainant. The Panel is satisfied that the Respondent has no rights or legitimate interests in the disputed domain name. Accordingly, the second element of paragraph 4(a) of the Policy is established in respect of the disputed domain name. C. Registered and Used in Bad Faith The Panel finds that the incorporation of the term “aquatimer”, identical to the Complainant’s trademark, in the disputed domain name which resolves to a website with sponsored links “IWC Aquatimer”, “IWC Portuguese”, “IWC Pilot Chrono”, “IWC Watch”, “IWC Savasant” and “IWC MK XVII” featuring the Complainant’s goods/services cannot be incidental. It suggests that the Respondent was aware of the existence of IWC Group, its trademark and the lines of watches it promotes and sells. It is further noted that the relevant webpage contains a statement “The domain aquatimer.com is for sale. To purchase, call Buydomains.com at […]”. The Panel also repeats the observations in Section 6.2.A and 6.2.B above. In the absence of any plausible explanation for the Respondent’s conduct in incorporating the Complainant’s AQUATIMER trademark in its entirety as part of the disputed domain name and using the disputed domain name for commercial gain, the Panel finds that the Respondent has 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 <aquatimer.com> be transferred to the Complainant. C. K. Kwong Sole Panelist Date: November 21, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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