WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Ravissant Limited. v. Vama Inc., Mehul Kotecha

Case No. D2003-0747

 

1. The Parties

The Complainant is Ravissant Limited of New Delhi, India, represented by Anand & Anand, India.

The Respondent is Vama Inc., Mehul Kotecha of Diamond Bar, California, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <eravissant.com> is registered with Register.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 23, 2003. That day, the Center transmitted by email to Register.com a request for registrar verification in connection with the domain name at issue and received by email from Register.com its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on September 29, 2003. The Center verified that the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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 October 1, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was October 21, 2003. Following a request for an extension of time within which to file the Response, on the ground that Mr. Kotecha was then on a business trip in India, the Center, having consulted the Complainant, extended the time until October 31, 2003. The Response was filed with the Center on October 29, 2003.

The Center appointed Alan L. Limbury as the sole panelist in this matter on November 6, 2003. 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 proceeding is English.

On November 11, 2003, the Complainant filed an additional, unsolicited submission, claiming this to be in accordance with the "procedural emphasis" laid down in Margadarsi Marketing Private Ltd. v. Bitranet India, WIPO Case No. D2000-1209; Corinthians Licenciamentos LTDA v. David Sallen, Sallen Enterprises & J. D. Sallen Enterprises, WIPO Case No. D2000-0461 and Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Company v. S&S Enterprise Ltd., WIPO Case No.D2000-0802. The Complainant submitted that the points made in the submission are of crucial importance to the case.

Rule 12 of the Rules states that the Panel may in its sole discretion request further statements or documents from either of the parties. Thus, no party has the right to insist upon the admissibility of additional evidence: SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092. It is appropriate to consider the circumstances of each case before deciding whether to admit unsolicited additional submissions: Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corporation v. S&S Enterprises Ltd., WIPO Case No. D2000-0802. This is not a case of discovery of evidence not reasonably available to the Complainant at the time of its initial submission, nor of arguments by the Respondent that the Complainant could not reasonably have anticipated: see Goldline International, Inc. v. Gold Line, WIPO Case No. D2000-1151. Accordingly the Panel does not admit the unsolicited submission.

 

4. Factual Background

The Complainant manufactures and deals in sterling silverware, silver and gold jewelry, fashion accessories, home décor and furnishings and leather accessories. It is the registered proprietor in India of five trademarks, each of which comprises or includes the word RAVISSANT. The marks were registered between 1981 and 1990 and cover the fields of linen and bed covers, cosmetics and toiletries, apparel, textile goods, fabrics, curtains, blinds and table covers.

The Complainant has used the trademark RAVISSANT (conceived by its founders, Ravi and Mina Chawla) in relation to haute couture since 1981, furnishings since 1984 and sterling silverware and jewelry since 1991. It has seven retail outlets in India and a presence in major boutiques and stores in the United States, France, Spain, Germany, Russia, Switzerland, Japan, Ireland and Denmark. It operates a website at

"www.cest-ravissant.com".

The Respondent Vama Inc. was incorporated in the State of California on June 16, 1999. Mr. Mehulkumar Kotecha was its incorporator and agent. Vama Inc. is an importer and distributor of handicrafts and silver gifts. In 2001 it decided to open a retail outlet under the name ĎRavissantí. On December 27, 2000, Mr. Kotecha, as Vice President of Vama Inc., registered the business name ĎRavissantí on behalf of the company in respect of the business of jewelry and gifts. The principal place of business of the company was stated on the registration form to be in Artesia, California and the form also stated that ĎRegistrant has not yet begun to transact business under the fictitious business nameí.

On February 6, 2001, the disputed domain name <eravissant.com> was registered in the two names "Vama Inc. Mehul Kotecha". On February 14, 2001, the California State Board of Equalization issued to Vama Inc. a Sellerís Permit, authorizing it, pursuant to sales and use tax law, to engage in the business of selling tangible personal property at the registered business location.

Under its business name Ravissant, the Respondent Vama Inc. is involved in the retail of silver jewelry, imitation jewelry, gifts, handicrafts and wedding related items. The website reached by means of the disputed domain name displays the name "Ravissant", and the address of the registered business location and offers inter alia "fashionable" and "ravishing Indian jewelry".

 

5. Partiesí Contentions

A. Complainant

The mark RAVISSANT is newly and freshly coined by the Complainant and, having no obvious meaning to any person and not being a dictionary word, is an invented word having the highest degree of inherent distinctiveness.

Through extensive use by the Complainant, the mark has acquired distinctiveness and is understood and associated by consumers in India as the mark of the Complainant denoting its goods and business.

The disputed domain name is identical to the Complainantís mark.

The Respondent is not, either as an individual, businesses or other organisation, commonly known by the name RAVISSANT. The Complainant has not licensed or otherwise permitted the Respondent to use its trademark RAVISSANT or to apply for any domain name incorporating this mark.

The Respondent has both registered and is using the disputed domain name in bad faith. Any incorporation of the said mark in a domain name is bound to be in bad faith. The Respondent clearly knew of the Complainant's prior rights when registering the domain name. This by itself constitutes bad faith. Any use of the disputed domain name by the Respondent would necessarily be in bad faith: Expedia, Inc v. European Travel Network, WIPO Case No. D2000-0137 and Which? Ltd v. James Halliday, WIPO Case No. D2000-0019.

The Respondent's website leads to confusion since any consumer would be likely to associate its website with the Complainant and its goods and services. Consumers would be induced to believe that the Respondent has some connection with the Complainant and believe that the Respondent is carrying on activities endorsed by the Complainant and that the services that are offered by the Respondent are at the same level of quality and reliability as those offered by the Complainant.

B. Respondent

Under the laws of the State of California, the Respondent has a licence to conduct business under the name Ravissant. The Complainant claims that it has "invented" the word "Ravissant" whereas the word is a French adjective meaning "ravishing".

Respondent has every right to use the disputed domain name to showcase its products to its customers. It is not in any way using the disputed domain name in bad faith. It has every right to use the disputed domain name as the Complainant in using its domain name <www.cest-ravissant> in India.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules requires the Panel to decide a Complaint on the basis of the statements and documents submitted in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

The burden for the Complainant, under paragraph 4(a) of the Policy, is to show that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; that the Respondent has no rights or legitimate interests in respect of the domain names; and that the domain name has been registered and is being used by the Respondent in bad faith.

A. Identical or Confusingly Similar

The Complainant has registered trademark rights in the word RAVISSANT, a French adjective meaning ravishing, as in the common expression "cíest ravissant". It has no inherent distinctiveness.

The Complainant has provided evidence of substantial use of that word as a trademark in connection with jewelry, including in particular silverware, and of the reputation of that mark in India and other countries. The Panel is satisfied that the Complainant has common law rights in the mark RAVISSANT, at least in India. "While the ambit of the Complainantís rights may be very narrow, they will certainly be sufficient to catch the use of an identical name in relation to a substantially identical category of service": Ski Utah, Inc. v. The Lodging Company Reservations Ltd., WIPO Case No. D2003-0776.

The Panel finds the addition of the prefix "e" to the Complainantís trademark is insignificant and that the disputed domain name is therefore confusingly similar to the Complainantís trademark RAVISSANT: see Inter-IKEA Systems B.V. v. Technology Education Center, WIPO Case No. D2000-0522 and Busy Body, Inc. v. Fitness Outlet Inc., WIPO Case No. D2000-0127. The Complainant has established this element.

B. Rights or Legitimate Interests

The Complainant has not licensed or otherwise permitted the Respondent to use its trademark RAVISSANT or to apply for any domain name incorporating that mark. These circumstances are sufficient to constitute a prima facie showing by the Complainant of absence of rights or legitimate interest in the disputed domain name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web, (WIPO Case No. D2000-0624) and the cases there cited.

The Respondent has shown that, at the time of the domain name registration, it owned the business name Ravissant. However, it has not shown that it was at that time commonly known by that name. The evidence suggests that it was not so known. First, the Respondent stated, on December 27, 2000, that it had not yet begun to transact business under that name. Second, the Respondentís Sellerís Permit was not granted until after the domain name had been registered. The Respondent has not established facts or circumstances within paragraph 4(c)(ii) of the Policy.

The Respondent, an importer and distributor of handicrafts and silver gifts, has been using the disputed domain name, prior to notice to it of this dispute, to offer Indian jewelry for sale. Through its incorporator, agent and Vice President Mr. Kotecha, the Respondent clearly has a connection with India, where Mr. Kotecha was on a business trip when seeking an extension of time for the Response. Having regard to the distinctiveness of the Complainantís mark in India and the activities of the Respondent in the same field as the Complainant, the Panel infers that the Respondent was aware of the Complainantís trademark when it decided to operate a retail outlet in the United States, to use the business name Ravissant and to register the disputed domain name.

The Respondent has used the disputed domain name to offer for sale goods associated with the Complainant, under the guise of an official outlet of the Complainant. Use which intentionally trades on the fame of another cannot constitute a Ďbona fideí offering of goods or services: Madonna Ciccone, p/k/a Madonna v. Dan Parisi and "Madonna.com", WIPO Case No. D2000-0847. The Respondent has not established facts or circumstances within paragraphs 4(c)(i) or (iii) of the Policy.

Accordingly the Panel finds the Complainant has established that the Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Knowing of the Complainantís mark (as the Panel has found), the Respondent registered the disputed domain name and has been using it to offer goods of the kind with which the Complainantís mark is associated, in such a way as to mislead Internauts into believing that the Respondentís goods and website are those of the Complainant. These circumstances constitute evidence of both bad faith registration and bad faith use, under paragraph 4(b)(iv) of the Policy.

Accordingly the Panel finds the Complainant has established this element.

 

7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <eravissant.com> be transferred to the Complainant.

 


 

Alan L. Limbury
Sole Panelist

Date: November 13, 2003