WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Thierry Mugler v. New York Link
Case No D2001-0713
1. The Parties
The complainant in this administrative proceedings is Thierry Mugler S.A., a company located at Bâtiments 123/124, 50 Avenue du President Wilson, 93210 La Plaine Saint Denis, France, hereinafter the "Complainant", and represented by Emmanuelle Schwartz-Jaeger with offices at Avenue Kleber, 94, 75116 Paris, France.
The respondent is New York Link Inc, with address at 162 Fifth Avenue, 10th Floor, New York, NY 10010, United States, hereinafter the "Respondent".
2. Domain Name and Registrar
The domain name at issue is <thierry-mugler.com>, hereinafter the "Domain Name". The registrar is Abacus America, Inc DBA Names4ever, and the Domain Name was registered on January 6, 2001.
3. Procedural History
The WIPO Arbitration and Mediation Center, hereinafter "the Center" received the Complainant's complaint and the exhibits on June 8, 2001, by hardcopy.
On June 12, 2001, the Center issued to the parties an Acknowledgement of Receipt of Complaint.
On June 12, 2001, the Center transmitted via email to Abadus America, Inc. DBA Names4ever a request for Registrar Verification relating to this case. On August 2, 2001, Abadus America Inc transmitted via email to the Center the Verification Response, confirming that a copy of the complaint has been sent to Abadus America, that the Domain Name is registered with Abadus America and that the Respondent is the current registrant of the Domain Name. It confirmed that the Uniform Dispute Resolution Policy is applicable and that the Domain Name registration status is "Active".
On June 13, 2001, the Center received the electronic version of the complaint.
On June 14, 2001, the Center informed the Complainant that the complaint should be submitted in the English language.
On August 20, 2001, the Center received the English version of the complaint by electronic version. The hardcopy version was received on August 23, 2001.
On August 28, 2001, the Center transmitted to the Respondent the Notification of Complaint and Commencement of the Administrative Proceeding and a copy of the complaint via post/courier and email in accordance with the following contact details:
Registrant, administrative contact, billing contact, technical contact:
New York Link, Inc.
162 Foifth Avenue, 10th Floor
New York, NY 190010
Administrative Contact, Technical Contact, Billing Contact:
Tony Boemi (2P5ML)
New York Link, Inc.
162 Foifth Avenue, 10th Floor
New York, NY 190010
This notification has been copied to the Complainant via email in accordance with the following contact details:
Cabinet Helene Petit
94, avenue Kleber
The Center advised that the response was due by September 17, 2001.
On September 21, 2001, having received no response from the Respondent, the Center issued to the email address of both parties a Notification of Respondent Default. No reply by the Respondent to the Notification of Respondent Default was received.
On September 26, 2001, in view of the Complainant’s designation of a single panelist, the Center invited M. Geert Glas to serve as a panelist and transmitted to him the Request for Declaration of Impartiality and Independence and a Statement of Acceptance.
Having received, on October 3, 2001, M. Geert Glas' Declaration of Impartiality and Independence and his Statement of Acceptance, the Center transmitted on October 4, 2001, to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date by e-mail, in which M. Geert Glas was formally appointed as the Sole Panelist. On the same day, the Center transmitted to the Sole Panelist the Case File and the electronic format of the complaint.
The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.
Having reviewed the communication records in the case file, the Administrative Panel finds that the Center has discharged its responsibility under Paragraph 2(a) of the Rules "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore the Administrative Panel shall issue its Decision based on the complaint, the Policy, the Rules, the Supplemental Rules and the verifiable facts but without the benefit of any response from Respondent.
4. Factual Background
The Complainant is the owner of several trademark registrations of the words "THIERRY MUGLER". These registrations cover France, Benelux, China, Spain, Italy, Poland, Portugal, Korea, Romania, Saint-Marin, Switzerland, Vietnam and United States.
The Complainant uses the trademark Thierry Mugler to distinguish its top fashion clothing creations but also for perfume, cosmetics, and accessories. The trademark consists of the first and last name of Mr. Thierry Mugler, a successful and acclaimed fashion designer
It can be said that the Complainant's trademark has as a result of the high luxury and quality level of the products it designates, become an internationally well-known mark.
It appears from the registrar's Verification Response that the Respondent is the registrant of the Domain Name and that he registered the Domain Name on January 6, 2001.
It appears from a bailiff declaration and statement that on March 1, 2001, the Domain Name was leading to the website of New York Link. No further reference was made to Thierry Mugler on that website. The website provided several services including the registration and sale of domain names.
On March 7, 2001, the Complainant sent a letter to the Respondent urging him to transfer the Domain Name.
This letter remained unanswered.
When the Panel is considering this case, the Domain Name does not resolve to any website.
5. Parties Contentions
The Complainant contends that the Domain Name is identical to its trademark.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name.
The Complainant contends that the Respondent has registered the Domain Name in bad faith. He contends that the Respondent has not used or shown preparation to use the Domain Name in connection with a bona fide offering of goods and services and that he is not making any legitimate non commercial use of the Domain Name. He contends also that, considering the undeniable notoriety of the Complainant's trademark, the Respondent could not have been unaware of the Complainant's trademark and has registered the Domain Name for the exclusive purpose of selling, renting or transferring the registration to the Complainant or to a competitor.
Respondent has not contested the allegations of the complaint and is in default.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Applied to this case, Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(1) that the Domain Name registered by the Respondent is identical or confusingly similar to the trademark in which the Complainant has rights; and,
(2) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and,
(3) that the Domain Name has been registered and is being used in bad faith.
a. Identity or confusing similarity
The Domain Name is identical to the Complainant's prior trademark "THIERRY MUGLER".
The Administrative Panel therefore finds that the requirement of paragraph 4(a)(i) of the Policy is satisfied.
b. Rights or Legitimate Interests
The Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name corresponding to its trademark.
There is no indication that the Respondent has registered or used the name "thierry-mugler" as a trademark, or has ever been known by this name.
Moreover, by not filing a response, the Respondent has failed to invoke any circumstance which could indicate the existence of any right or legitimate interest he would have in the Domain Name.
Therefore the Panel finds that the requirement of paragraph 4(a)(ii) of the Policy is satisfied.
c. Registration and Use in Bad Faith
The Complainant's trademark is famous and widely used as evidenced by the multiple trademark registrations and the worldwide fame of this trademark associated with the image of a high quality fashion designer. In view of the above-described fame of the Complainant's trademark, the choice of the Domain Name by the Respondent could not result from a mere coincidence.
As the Respondent could not have been unaware of the Complainant's trademark, by knowingly choosing a domain name consisting of the Complainant's trademark, the Respondent intentionally created a situation which is at odds with the legal rights and obligations of the parties.
It appears from the evidence provided by the Complainant that at the moment the complaint was being drafted, the Domain Name resolved to a website which had as main purpose to offer domain names for sale. However, the Domain Name currently seems not to resolve anymore to a website.
The Respondent was in default to respond in these proceedings, thereby failing to invoke any element or circumstance which could indicate the good faith nature of his registration and use of Domain Name. As a consequence, the Respondent has failed to demonstrate any bona fide use of the Domain Name.
Considering the lack of interest of the Respondent in the Domain Name, in the defense of his rights and interests as to the Domain Name and the above facts, the Administrative Panel finds that the Complainant has met its burden under section 4(a)(iii) of the Policy and that the Respondent has registered and used the Domain Name in bad faith.
In light of the foregoing, the Administrative Panel decides that the Domain Name registered by the Respondent is identical to the Complainant's trademarks, that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Respondent’s Domain Name has been registered and is being used in bad faith.
Accordingly, pursuant to Paragraph 4(i) of the Policy, the Administrative Panel requires that the registration of the Domain Name <thierry-mugler.com> be transferred to the Complainant.
Date: October 18, 2001