The Complainant is Baccarat SA, of France represented by Meyer & Partenaires, France.
The Respondent is Emiliano Ciucci of Australia.
The Disputed Domain Name <glassbaccarat.com> is registered with eNom.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 10, 2010. On February 10, 2010, the Center transmitted by email to eNom a request for registrar verification in connection with the Disputed Domain Name. On February 10, 2010, eNom transmitted by email to the Center its verification response confirming that the Respondent 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 the “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 February 15, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 7, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 9, 2010.
The Center appointed Charné Le Roux as the sole panelist in this matter on March 19, 2010. 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 Complainant is the manufacturer of crystal wares and has been operational since 1764. It is the owner of the trade mark BACCARAT and registered the trade mark across the world, including in Australia where the Respondent is located. The first trade mark registration for BACCARAT was filed in France and is dated December 29, 1860. The first registration for BACCARAT in Australia is dated May 22, 1982. The Complainant also owns several domain names including the trade mark BACCARAT such as <baccarat.com>, <cristaldebaccarat.com> and <baccarat-crystal.com>.
The Respondent registered the Disputed Domain Name on December 10, 2009. The website at “www.glassbaccarat.com” includes information about the BACCARAT trade mark and products manufactured by the Complainant and also sponsored links to various other categories of goods such as window blinds and window repair services.
The Complainant contends that it is a worldwide famous manufacturer of crystal wares, that its BACCARAT products have been supplied to foreign Courts and heads of states for more than 200 years and that its products have been awarded worldwide many times. The Complainant contends that it owns many domain names incorporating its BACCARAT trade mark and that it holds more than 700 trade marks across the world. The Complainant submits that previous UDRP decisions held that the BACCARAT trade mark was famous.
The Complainant contends that the Disputed Domain Name is confusingly similar to its BACCARAT trade mark in that it incorporates its trade mark in its entirety, accompanied by a generic word. The Complainant contends that the Disputed Domain Name is designed to lead consumers who are searching for the Complainant's goods to the Respondent's website.
The Complainant also contends that the Respondent lacks rights or legitimate interest in the Disputed Domain Name in that
(a) the Respondent is not known under the name BACCARAT;
(b) the Respondent does not own any relevant trade marks for the Complainant's BACCARAT trade mark, nor is it licensed or otherwise authorised to use the Complainant's trade mark;
(c) the Respondent is not using the Complainant's trade mark descriptively as a dictionary term; and
(d) the website to which the Disputed Domain Name resolves offers goods and services unrelated to those offered by the Complainant and therefore that the Respondent intended by the use and the registration of the Disputed Domain Name to mislead consumers.
The Complainant also points out that the website attached to the Disputed Domain Name is, in fact, a PPC website which constitutes non-legitimate commercial use and that the objective of the Respondent is simply to attract, for commercial gain, users to its parking website.
The Complainant further states that the Disputed Domain Name was registered and is being used in bad faith. According to the Complainant, given its prominence worldwide and on the Internet, the Respondent must have known that the incorporation of its BACCARAT trade mark in the Disputed Domain Name would be likely to cause Internet users to believe that a website at “www.glassbaccarat.com” was sponsored by or affiliated with the Complainant. The Complainant also contends that the Respondent misuses the trade marks of third parties in connection with domain names and that he has registered other domain names, including <asromaproductsonline.com> and <paulmitchellhairproducts.com>. The Complainant also submits that the Respondent receives a commercial interest from the sponsored links on the website attached to the Disputed Domain Name, which benefit is based on the goodwill and fame attached to the Complainant's BACCARAT trade mark.
The Complainant requests that the Disputed Domain Name be transferred to it.
The Respondent did not reply to the Complainant's contentions.
In accordance with Paragraph 4(a) of the Policy in order to succeed in this proceeding the Complainant must prove
(i) that the Disputed Domain Name is identical or confusingly similar to a mark in which it has rights;
(ii) that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) that the Disputed Domain Name has been registered and is being used in bad faith.
In accordance with paragraph 14(b) of the Rules, the Panel will draw such inferences from the Respondent's default as it considers appropriate. This will include the acceptance of plausible evidence of the Complainant which has not been disputed.
The Panel finds on the evidence that the Complainant has proven that it owns registered rights in the trade mark BACCARAT. The Panel also finds, as has other UDRP Panels, that the BACCARAT trade mark is well-known worldwide.
The Panel finds that the Disputed Domain Name is confusingly similar to the Complainant's BACCARAT trade mark. The addition of the descriptive word “glass” to the well known trade mark does not assist the Respondent in escaping the finding of confusing similarity.
The first requirement of paragraph 4(a) of the UDRP is satisfied.
The Panel considers that the Respondent's use of the Disputed Domain Name is not in connection with a bona fide offering of goods and services such as to confer on the Respondent rights or legitimate interests for the purposes of the UDRP. On the contrary, it is use of the Disputed Domain Name in bad faith, which takes unfair advantage of the reputation of the Complainant's BACCARAT trade mark and of the Disputed Domain Name's identity to or confusing similarity with that trade mark, in order to divert Internet users seeking information about the Complainant and its goods to the Respondent's website and the goods and services promoted through it.
The Panel further finds that the Respondent is not commonly known by the Disputed Domain Name, that he is not making legitimate non-commercial fair use of the Disputed Domain Name, that he is not authorised by the Complainant to use the Disputed Domain Name, and that there is no other basis on which he could claim to have rights or legitimate interests in respect of the Disputed Domain Name in this case.
The second requirement of paragraph 4(a) of the UDRP is satisfied.
The Panel finds on the evidence that the Respondent is using the Disputed Domain Name intentionally to attract Internet users to his website for commercial gain by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the Respondent's website and the products and service offered and promoted through it. In the Panel's view, Internet users seeking information about the Complainant's goods are liable to be diverted by confusion between the Disputed Domain Name and the Complainant's mark to the Respondent's website where services and products relating to various goods and services are offered and promoted, for commercial gain, in which the Respondent no doubt shares.
In accordance with paragraph 4(b)(iv) of the UDRP, these circumstances constitute evidence of registration and use of the Disputed Domain Name in bad faith. There is no evidence displacing this presumption.
The third requirement of paragraph 4(a) of the UDRP is satisfied.
For all the aforegoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name <glassbaccarat.com> be transferred to the Complainant.
Charné Le Roux
Dated: April 9, 2010