The Complainant is Richemont International SA, of London, represented by Howrey LLP, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Dominic Spoon, of Bogota, Venezuela.
The disputed domain name <baumemercierwatch.com> is registered with GoDaddy.com, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 10, 2008. On December 11, 2008, the Center transmitted by email to GoDaddy.com, Inc. a request for registrar verification in connection with the disputed domain name. On December 11, 2008, GoDaddy.com, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 15, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was January 4, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 8, 2009.
The Center appointed Jeffrey M. Samuels as the sole panelist in this matter on January 21, 2009. 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.
Baume & Mercier is a Swiss watch making company that was founded in 1830 and is a “maison” within Complainant's group of “maisons”. Complainant Richemont International SA owns trademark registrations for the BAUME & MERCIER mark, as used on watches and related goods, in many countries around the world.
The disputed domain name, <baumemercierwatch.com>, was registered on August 3, 2005, and is used in connection with a website that offers for sale BAUME & MERCIER replica watches.
Complainant asserts that the disputed domain name is confusingly similar to its BAUME & MERCIER mark, which is registered around the world. It contends that the expression “baume mercier,” as used in the disputed domain name, is clearly intended to refer to Complainant's BAUME & MERCIER mark and that the term “watches” is purely descriptive of products sold by Complainant under its BAUME & MERCIER mark.
Complainant further argues that Respondent has no rights or legitimate interests in the disputed domain name. It indicates that Respondent is not a licensee of Complainant and that Complainant has not consented to the use of the BAUME & MERCIER mark by Respondent.
With respect to the issue of bad faith registration and use, Complainant notes that, at the time of registration of the disputed domain name, Complainant and its predecessors in title had been trading under the BAUME & MERCIER trademark around the world for over 175 years and that such mark enjoys a substantial reputation. Complainant further contends that Respondent uses the <baumemercierwatch.com> domain name for a site that offers counterfeit watches bearing the BAUME & MERCIER marks.
In view thereof, Complainant argues that Respondent registered the domain name to attract, for commercial gain, Internet users to Respondent's website by creating a likelihood of confusion with Complainant's BAUME & MERCIER mark as to the source of the goods or, at the very least, to suggest endorsement or affiliation with Complainant.
Complainant also maintains that Respondent registered the domain name to disrupt Complainant's legitimate business, by attracting to its website consumers who are searching for Complainant's products and who, understandably, would consider that the domain name is likely to link to a site operated by Complainant.
Finally, Complainant points out that its attorneys sent a letter to Respondent, dated November 21, 2008, requesting transfer of the disputed domain name, and that Respondent did not respond to such letter.
The Respondent did not reply to the Complainant's contentions.
The Panel determines that the disputed domain name <baumemercierwatch.com> is confusingly similar to the BAUME & MERCIER mark. The disputed domain name incorporates the distinctive term “Baume Mericer”. The domain name differs from the mark only in its deletion of the ampersand used in Complainant's mark and in its inclusion of the term “watch” and the top-level domain “com.” None of these differences, however, whether viewed singularly or collectively, is legally significant. The term “watch,” as used on watches, is, at best, descriptive (perhaps even generic) and, thus, does not bar a finding of confusing similarity to Complainant's trademark. The same is true with respect to the “.com” top-level domain. The domain name's deletion of the ampersand found in Complainant's mark is dictated by technical limitations and, in any case, is merely serving as a shorthand reference to the term “and,” does not detract from the confusing similarity between Complainant's mark and Respondent's domain name.
The Panel further finds that, as a result of its use of, and registrations around the world for, the BAUME & MERCIER mark, Complainant has rights in such mark to which the disputed domain is confusingly similar.
The Panel rules that Complainant has met its burden of establishing that Respondent has no rights or legitimate interests in the disputed domain name. There is no evidence that any of the circumstances set forth in paragraph 4(c) of the Policy exists in this case and Complainant has established that Respondent is not licensed or otherwise authorized to use the disputed domain name.
The Panel concludes that the disputed domain name was registered and is being used in bad faith.
The evidence establishes that Respondent, by using the domain name in issue, has intentionally attempted to attract, for commercial gain, internet users to its website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of such site or of the products on such site, within the meaning of paragraph 4(b)(iv) of the Policy. As noted above, the disputed domain name <baumemercierwatch.com> is confusingly similar to Complainant's BAUME & MERCIER mark and the evidence indicates that Respondent offers for sale at the subject website replicas of BAUME & MERCIER watches. Under such circumstances, an Internet user is likely to associate the goods offered at Respondent's site, as well as the site itself, with Complainant.
The above facts, coupled with evidence relating to Complainant's longstanding use of its BAUME & MERCIER mark, also establish that Respondent registered the domain name primarily for the purposes of disrupting Complainant's business, within the meaning of paragraph 4(b)(iii) of the Policy.
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 <baumemercierwatch.com> be transferred to the Complainant.
Jeffrey M. Samuels
Dated: February 2, 2009