WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Diamonique Corporation v. N/A
Case No. D2007-1089
1. The Parties
The Complainant is Diamonique Corporation, of West Chester, Pennsylvania, United States of America, represented by Caesar, Rivise, Bernstein, Cohen, & Pokotilow, Ltd., United States of America.
The Respondent is N/A, of Los Angeles, California, United States of America.
2. The Domain Names and Registrar
The disputed domain names <czdiamonique.com> and <wwwdiamonique.com> are registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 23, 2007. On July 27, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain names at issue. On July 27, 2007, eNom transmitted by email to the Center its response that the Respondent named in the initial complaint was not the correct name of the registrant of the domain names. In response to notifications by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on August 8, 2007. The Center verified that the Complaint together with the amendment to the 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 August 9, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 29, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 31, 2007.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on September 11, 2007. 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
Since 1970, Complainant, through its predecessor in interest, has used the trademark DIAMONIQUE for jewelry featuring simulated gemstones in the United States and throughout the world. Since 1986, Complainant’s jewelry has been offered and advertised under the trademark DIAMONIQUE through QVC, Inc., one of the world’s leading electronic retailers. Complainant’s jewelry has been offered through the “home shopping” outlets of QVC, Inc.’s home shopping television program, which is broadcasted throughout the United States and in numerous other countries, as well as on the Internet.
Complainant is the owner of several U.S. trademark registrations for the mark DIAMONIQUE for use in connection with jewelry with simulated gemstones (Registration Nos. 1,532,950, 1,538,103) and for other registrations that include the term DIAMONIQUE in the field of jewelry (Registration Nos. 2,490,674, 2,662,984, 2,827,488, 2,873,798, 2,910,024, 3,066,367, 3,030,585, 3,054,609).
The domain names were first registered in 2006, many years after Complainant adopted and registered its DIAMONIQUE mark.
5. Parties’ Contentions
Complainant contends that the domain names are confusingly similar to Complainant’s DIAMONIQUE trademark, that Respondent lacks any rights or legitimate interests in the domain names, and that Respondent has registered and used the domain names in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the domain name in dispute is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests with respect to the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs the Panel to 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”.
A. Identical or Confusingly Similar
The disputed domain names <czdiamonique.com> and <wwwdiamonique.com> incorporate Complainant’s registered DIAMONIQUE trademark in its entirety. The domain names add only the non-distinctive “www” designation and the non-distinctive “cz” designation, which is an abbreviation for “cubic zirconia” used in the jewelry industry. The most dominant feature of both domain names is Complainant’s registered trademark DIAMONIQUE. The addition of the non-distinctive elements does not change the overall impression of the mark.
Accordingly, the Panel finds that the domain names are identical or confusingly similar to Complainant’s trademark.
B. Rights or Legitimate Interests
Respondent is not affiliated with or related to Complainant in any way, nor is Respondent licensed by Complainant or otherwise authorized to use the DIAMONIQUE mark.
Respondent is not generally known by the domain name and has not acquired any trademark or service mark rights in that name or mark.
Respondent is not using the domain name in a bona fide manner. Instead, Respondent is using the domain names to promote and market goods on its web site that are similar to and competitive with those of Complainant. Such parasitic use, which relies on consumer confusion, does not constitute bona fide commercial or fair use sufficient to legitimize any rights and interests Respondent could claim in the disputed domain names.
In view of the widespread use and recognition of Complainant’s DIAMONIQUE mark, it is extremely difficult to conceive of any possible legitimate use that Respondent could have for the domain names. Instead, it is apparent that the domain names are deliberately designed to exploit Internet user confusion for Respondent’s own pecuniary benefit by relying on consumer confusion to increase the amount of traffic to Respondent’s own web sites.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:
(i) circumstances indicating that Respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or
(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, Respondent has intentionally attempted to attract for commercial gain, Internet users to Respondent’s website or other on-line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s website or location of a product or service on Respondent’s website or location.
It should be noted that the circumstances of bad faith are not limited to the above.
Here, it is apparent that Respondent has registered the domain names to disrupt Complainant’s business and to intentionally attract, for commercial gain, Internet users to Respondent’s web site by creating a likelihood of confusion with Complainant’s DIAMONIQUE trademark. Respondent redirects Internet users entering the domain name <czdiamonique.com> as a URL to a web site entitled “www.cubicjewelry.com,” an online retail site featuring cubic zirconia jewelry, the same type of goods manufactured and marketed by Complainant. Thus, Respondent’s purpose is to divert business from Complainant by taking advantage of the goodwill and reputation represented by Complainant’s name and trademark.
In addition, Respondent directs the Internet user who mistakenly types “wwwdiamonique.com” (without inserting a period after the letters “www”) to a website listing third party hyperlinks relating to jewelry which, when clicked, display a series of further links related to jewelry products or services. Respondent is apparently employing the <wwwdiamonique.com> domain name for commercial gain on a “pay per click” or sponsored advertising basis. This is a classic case of “typosquatting” by which Respondent is taking advantage of Complainant’s widely known trademark.
The Panel finds that Respondent has registered and used the domain names in bad faith.
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 names, <czdiamonique.com> and <wwwdiamonique.com> be transferred to the Complainant.
Lynda J. Zadra-Symes
Dated: September 24, 2007