Westmore · UDRP DecisionMytissot.com
The Panel ordered transfer of <mytissot.com>. It found the Domain Name confusingly similar to the Complainant’s TISSOT mark, held that the Respondent’s use of the Domain Name for an Amazon-affiliate watch website was not a bona fide offering, and concluded that the Domain Name was registered and used to exploit the TISSOT mark for commercial gain. The Panel also noted an indication that the Respondent might sell the Domain Name for USD 20,000 and the Respondent’s request for a “fair domain transfer fee.”
The timeline behind mytissot.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 mytissot.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates how affiliate monetization can defeat a claimed review-site justification where a domain incorporates the trademark, directs users to commercial listings, and features both the trademark owner’s and competitors’ products. It also shows that consent to transfer does not prevent a panel from deciding all three UDRP elements when the response seeks payment as part of the transfer.
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 Tissot S.A. v. Domains By Proxy, LLC / Serkan Ergovan Case No. D2018-2301 1. The Parties The Complainant is Tissot S.A. of Le Locle, Switzerland, represented by Steven M. Levy, United States of America (“United States”). The Respondent is Domains By Proxy, LLC of Scottsdale, Arizona, United States / Serkan Ergovan of Istanbul, Turkey. 2. The Domain Name and Registrar The disputed domain name <mytissot.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 October 10, 2018. On October 11, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 12, 2018, the Registrar transmitted by email to the Center its verification response confirming that Serkan Ergovan 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 October 18, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 7, 2018. The Response was filed with the Center on November 6, 2018. The Center appointed Ian Lowe as the sole panelist in this matter on November 26, 2018. 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 a leading designer, manufacturer and seller of specialty wristwatches based in Switzerland. It has carried on business under the name TISSOT for over 160 years. Its products are available at thousands of retail outlets throughout the world and the Complainant maintains hundreds of dedicated TISSOT branded retail stores throughout North America, Europe, the Middle East, Central and South America, Asia and Australia. It also has an official online retail channel at “www.tissotwatches.com”. The Complainant is the owner of numerous registered trademarks around the world for the TISSOT mark, including European Union trademark number 225698 registered on November 12, 1998, United States trademark number 1639684 registered on April 2, 1991 and International trademark number 729106 registered on February 23, 2000, designated in 62 countries. The Domain Name was registered on May 27, 2015. It resolves to a website at “www.watchguide.com” that features a wide range of watches manufactured by the Complainant and by a number of its competitors. Each watch listing includes a link to a page of the Amazon website offering the watch for sale. The “watchguide.com” website expressly states in a footer to its webpages that “www.mytissot.com” is a participant in the Amazon “affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to amazon.com”. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its TISSOT trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent registered and is using the Domain Name in bad faith within the meaning of paragraph 4(b)(i) of the Policy. B. Respondent The Respondent states that users can easily recognize the difference between an official website and one whose domain name includes the possessive pronoun “my”. It says that its website is not intended to harm the Complainant but rather to provide reviews of watches for those with a passionate interest in them. It asserts that it is an amateur Amazon affiliate like many other websites. It denies that it contacted the Complainant with a view to selling the Domain Name for a high price and points out that its website does not claim to be an “Official Tissot Website”. The Response concludes with the statement “I accept to transfer the domain name. I kindly ask WIPO to consider a fair domain transfer fee…”. 6. Discussion and Findings A. Complainant For this Complaint to succeed in relation to the Domain Name the Complainant must prove that: (i) the 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 Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. B. Identical or Confusingly Similar The Complainant has uncontested rights in its TISSOT mark, both by virtue of its many trademark registrations and as a result of the goodwill and reputation acquired through its widespread use of the mark over more than 160 years. Ignoring the generic Top-Level Domain (“gTLD”) “.com”, the Domain Name comprises the TISSOT mark with the addition of the suffix “my”. In the view of the Panel, the addition of the possessive pronoun does not detract from the confusing similarity between the Complainant’s mark and the Domain Name. Accordingly, the Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights. C. Rights or Legitimate Interests The Complainant has made out a strong prima facie case that the Respondent could have no rights or legitimate interests in respect of the Domain Name. The Respondent has no connection with the Complainant and is not authorized in any way to use the Complainant’s trademarks. The Respondent has used the Domain Name to link to a website featuring not only the Complainant’s products but also products of its competitors, all with links to Amazon web pages offering the products for sale. Since the Respondent’s website is part of Amazon’s affiliate advertising program, clicking through from the Respondent’s website to the Amazon website is intended to result in a payment to the Respondent. It is therefore clear that the Respondent’s website is not merely providing reviews of watches as suggested by the Respondent. In the Panel’s view, such activity does not amount to a bona fide offering of goods or services. In the circumstances, the Panel finds that the Respondent does not have any rights or legitimate interests in respect of the Domain Name. D. Registered and Used in Bad Faith In light of the nature of the Domain Name and the use to which the Respondent has put the Domain Name for a website advertising the Complainant’s products (as well as products of the Complainant’s competitors), the Panel is in no doubt that the Respondent had the Complainant and its rights in its TISSOT mark in mind when it registered the Domain Name. In response to a demand letter sent on behalf of the Complainant, the Respondent’s representative indicated that the Respondent may be prepared to sell the Domain Name for USD 20,000, a sum well in excess of the Respondent’s costs directly related to the Domain Name. In light of the use to which the Respondent has put the Domain Name and the terms of the Response, the Panel is in no doubt that the Respondent registered the Domain Name with a view to taking advantage of the Complainant’s rights in the TISSOT mark for commercial gain through the Amazon affiliate advertising program. The Panel considers that this amounts to paradigm bad faith registration and use for the purposes of the Policy. Moreover, although the Respondent inappropriately asked WIPO to consider “a fair domain transfer fee”, it accepted in its Response that the Domain Name should be transferred. Accordingly, the Panel finds that the 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 <mytissot.com> be transferred to the Complainant. Ian Lowe Sole Panelist Date: December 10, 2018
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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