World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Diamond Mattress Company, Inc. v. Diamond Mattress

Case No. D2010-1637

1. The Parties

The Complainant is Diamond Mattress Company, Inc. of Compton, California, United States of America, represented by Hart, King & Coldren, United States of America.

The Respondent is Diamond Mattress of San Luis Obispo, California, United States of America, represented by Mod Law pllc, United States of America.

2. The Domain Names and Registrar

The disputed domain names <diamondmattress.net> and <diamondmattress.org> are registered with Network Solutions, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 28, 2010. On September 29, 2010, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the disputed domain names. On September 29, 2010, Network Solutions, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on October 6, 2010. 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” 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 October 7, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was October 27, 2010. The Response was filed with the Center on October 27, 2010.

The Center appointed William R. Towns as the sole panelist in this matter on November 3, 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.

4. Factual Background

The Complainant manufactures, sells, and distributes mattresses, mattress foundations, and related sleep products in the United States, including the State of California, where the Complainant is incorporated and maintains its principle place of business. The Complainant has a United States trademark registration for the mark DM DIAMOND MATTRESS a design plus words mark, issued by the United States Patent and Trademark Office (USPTO) on June 15, 2010 (below image).

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The Complainant has used this mark and logo since 1985, and it is prominently displayed on the Complainant’s website at “www.diamondmattress.com” (below image).

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The Complainant also has a pending application before the USPTO to register the word mark DIAMOND MATTRESS, filed on November 10, 2010, and claims to have used the DIAMOND MATTRESS mark in commerce since the Complainant began doing business in 1946.

The Respondent is an online reseller of the Complainant’s products. In February 2006, the Respondent registered the disputed domain names, which resolves to the Respondent’s commercial website, which display the Complainant’s mark and logo, a slogan prominently featured on the Complainant’s website, and imagery that is similar to that found on the Complainant’s website (Respondent’s website image below).

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5. Parties’ Contentions

A. Complainant

According to the Complainant, it was incorporated in the State of California in 1967. The Complainant asserts that it (and its successor) continuously have manufactured, distributed and sold mattresses and related sleep products under the DIAMOND MATTRESS mark since 1946. As a result of such efforts, the Complainant maintains that the public has come to identify DIAMOND MATTRESS as an indicator of source, and that the Complainant has become known as a preeminent source of quality sleep products in the United States. In addition, the Complainant states that as a precaution it has obtained a United States trademark registration for its DIAMOND MATTRESS mark.1 The Complainant further asserts that for many years it also has used the slogan “Building Handcrafted Mattresses since 1946” in connection with its marketing and promotion of DIAMOND MATTRESS products.

The Complainant asserts that the Respondent, although identified in the relevant WhoIs data as “Diamond Mattress”, is Timbuktu Mattress & Furniture Warehouse, a Santa Barbara, California-based store that sells the Complainant’s DIAMOND MATTRESS branded products. The Complainant maintains that the Respondent has not been licensed or otherwise authorized to use the Complainant’s name and mark, or to register domain names incorporating the Complainant’s mark. The Complainant further asserts that the Respondent is using the disputed domain names to attract Internet users to a website where the Respondent attempts to pass itself off as the Complainant, or at a minimum, to confuse and mislead consumers into believing the Respondent’s website is in some manner authorized or sponsored by the Complainant.

In view of the foregoing, the Complainant argues that the disputed domain names are identical to or confusingly similar with its DIAMOND MATTRESS mark, that the Respondent lacks rights or legitimate interests in the disputed domain names, and that the Respondent registered and is using the disputed domain names in a bad faith attempt, for commercial gain, intentionally to attract Internet visitors to the Respondent’s website by creating a likelihood of confusion regarding the Complainant’s mark as to affiliation, sponsorship or endorsement of the Respondent’s website.

B. Respondent

The Respondent maintains that it registered the disputed domain names in good faith in February 2006. According to the Respondent, it has been an online reseller of the Complainant’s mattresses for more than four years, and is affiliated with Timbuktu Furniture, located in Santa Barbara, California, which has sold the Complainant’s mattresses as well as other furniture since 1996. The Respondent maintains that while the Complainant on several occasions following the Respondent’s registration of the disputed domain names sought to have the Respondent make changes to its website, including removal of the Complainant’s DM DIAMOND MATTRESS logo, the Complainant never indicated to the Respondent that it was claiming trademark rights in the words “diamond mattress”.

The Respondent further asserts that the Complainant does not have a trademark registration for DIAMOND MATTRESS, and that the Complainant’s use of the ® symbol therewith in the Complainant is improper and fraudulent. The Respondent acknowledges the Complainant’s federal registration for DM DIAMOND MATTRESS & design, but notes that the Complainant expressly disclaimed rights in the word “mattress” other than as used in the mark.

The Respondent also contends that the term “diamond mattress” is descriptive of mattresses with diamond shaped pillows, and has been used in this sense for a number of years. According to the Respondent, there are also other manufacturers, distributors or retail sellers of mattresses who use “diamond” or “diamond mattress” in connection with their trade or business names. Accordingly, the Respondent concludes that the Complainant does not have trademark rights in DIAMOND MATTRESS, has not demonstrated secondary meaning therein, and in any event is not entitled under the Policy to assert exclusive rights to the descriptive term “diamond mattress”.

In view of the foregoing, the Respondent asserts that the disputed domain names are neither identical nor confusingly similar to any trademark in which the Complainant has established rights. Further, the Respondent maintains that as a reseller of the Complainant’s products it has established legitimate interests in the disputed domain names through their use in connection with a bona fide offering for sale of such products prior to any notice of this dispute, and that the Complainant has tacitly permitted or acquiesced to such use for over four years, In the alternative, the Respondent asserts that issues such as trademark validity, reseller arrangements, contract or license, consent, and acquiescence are outside the scope of the Policy.

The Respondent denies that it has registered or used the disputed domain names in bad faith, in view of the foregoing. The Respondent also observes that it does not compete with the Complainant for sales of the Complainant’s products, as the Complainant does not sell at retail, that its website clearly reflects its status as a “reseller” of diamond mattresses, and that it uses “Diamond Mattresses” as its business or trade name, with the Complainant’s knowledge or consent.

6. Discussion and Findings

A. Scope of the Policy

The Policy is addressed to resolving disputes concerning allegations of abusive domain name registration and use. Milwaukee Electric Tool Corporation v. Bay Verte Machinery, Inc. d/b/a The Power Tool Store, WIPO Case No. D2002-0774. Accordingly, the jurisdiction of this Panel is limited to providing a remedy in cases of “the abusive registration of domain names”, also known as “cybersquatting”. Weber-Stephen Products Co. v. Armitage Hardware, WIPO Case No. D2000-0187. See Final Report of the WIPO Internet Domain Name Process, paragraphs 169 and 170.

Paragraph 15(a) of the Rules provides that the Panel shall decide a complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the Panel deems applicable.

Paragraph 4(a) of the Policy requires that the Complainant prove each of the following three elements to obtain a decision that a domain name should be either cancelled or transferred:

(i) The domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) The 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.

Cancellation or transfer of the disputed domain names are the sole remedies provided to the Complainant under the Policy, as set forth in paragraph 4(i).

Paragraph 4(b) of the Policy sets forth four situations under which the registration and use of a domain name is deemed to be in bad faith, but does not limit a finding of bad faith to only these situations.

Paragraph 4(c) of the Policy in turn identifies three means through which a respondent may establish rights or legitimate interests in the domain name. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily if not exclusively within the knowledge of the respondent. Thus, the consensus view is that paragraph 4(c) shifts the burden to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.

B. Identical or Confusingly Similar

The Panel finds for purposes of paragraph 4(a)(i) of the Policy that the disputed domain names <diamondmattress.net> and <diamondmattress.org> are confusingly similar to the Complainant’s DM DIAMOND MATTRESS (and Design) mark, in which the Complainant clearly has established rights through registration and long use. The critical inquiry under the first element of the Policy is whether the mark and domain name, when directly compared, are identical or confusingly similar. See Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662. See also RUGGEDCOM, Inc. v. James Krachenfels, WIPO Case No. D2009-0130 (at the heart of paragraph 4(a)(i) is whether the mark and the disputed domain name look, sound, and “feel” sufficiently similar that Internet users looking for websites associated with the complainant would be likely to arrive at a website at the disputed domain name) (majority opinion).

For purposes of direct comparison under paragraph 4(a)(i), this Panel’s view is that the design features of a complainant’s mark generally should be disregarded. Nonetheless, even taking consideration the design features of the Complainant’s DM DIAMOND MATTRESS mark, the Panel concludes that the disputed domain names remain confusingly similar when directly compared to the mark. The significant design feature of the Complainant’s mark – the fanciful image of a diamond – tends to focus attention on and reinforce DIAMOND MATTRESS as the dominant feature of the mark. The disputed domain names incorporate the dominant feature of the Complainant’s mark, and are confusingly similar to the Complainant’s mark under the applicable standard. The omission from the disputed domain names of the letters “DM” – an obvious acronym for DIAMOND MATTRESS – does not overcome the confusing similarity of the disputed domain names.

In addition, the Panel finds based on the record before it that the Complainant has established common law rights in DIAMOND MATTRESS by virtue of extensive and continuous use sufficient to support a conclusion that a relevant segment of the purchasing public has come to DIAMOND MATTRESS as a symbol that distinguishes the Complainant’s products from those of others. See United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90 (1918). The disputed domain names are identical to the Complainant’s common law mark, and the Panel finds no credible evidence in the record to support the Respondent’s claim that the term “diamond mattress” is generic or descriptive when used in reference to mattresses or other sleep products.2

Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

C. Rights or Legitimate Interests

As noted above, once the complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, paragraph 4(c) shifts the burden of proof to the respondent to come forward with evidence of rights or legitimate interests in a disputed domain name. The Panel is persuaded from the record of this case that a prima facie showing under paragraph 4(a)(ii) has been made. The disputed domain name incorporates the Complainant’s distinctive and well-known mark in its entirety. The Respondent is using the disputed domain name to attract Internet users to commercial websites on which the Respondent promotes and offers its products. There is no indication that the Respondent has been commonly known by the disputed domain name, and the Complainant denies authorizing the Respondent to use the Complainant’s mark in connection with domain names or in any other manner.

Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:

(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The Respondent maintains that it has established rights or legitimate interests in the disputed domain name based on the contention that, before any notice of this dispute, the Respondent was using the domain name in connection with a bona fide offering of goods are services. The Respondent’s argument appear to be based on two seemingly mutually exclusive theories: The first being that the Respondent is using the disputed domain names in a descriptive manner, and the second being the assertion that the Respondent is making a nominative fair use of the disputed domain names as a reseller of the Complainant’s branded products.

Where a respondent registers a domain name consisting of “dictionary” terms because the respondent has a good faith belief that the domain name’s value derives from its generic or descriptive qualities, the use of the domain name consistent with such good faith belief may in certain instances establish a legitimate interest. See Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304. But the domain name must have been registered because of, and any use consistent with, its attraction as a dictionary word or descriptive term, and not because of any value corresponding to a trademark. See, e.g., Media General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964.

The inherent difficulty with the Respondent’s “descriptive use” argument is that the record is lacking in any convincing evidence that the phrase “diamond mattress” is either generic for or merely descriptive when used in relation to mattresses or other sleep products. Despite the Respondent’s protestations to the contrary, and based on the record before it, the Panel entertains no doubt that the Respondent – who claims to have sold the Complainant’s products since 1996 – was well aware of the Complainant’s historic use of DIAMOND MATTRESS as a trade-related symbol and indicator of source.

The indisputable fact that the Respondent appropriated for its own use and prominently displays the Complainant’s DM DISPUTED MATTRESS mark and logo on its website is one indication of such awareness. Moreover, insofar as the record reflects, the only mattresses or other sleep products offered on the Respondent’s website with which the disputed domain names are associated are those of the Complainant. And while the Response provides some evidence that several other mattress manufacturers, and in particular one company in Utah, use “Diamond Mattress” as a business or trade name, the declaration of the Respondent’s representative submitted with the Response suggests that such knowledge was acquired only after the filing of the Complaint.

In short, and given the totality of the circumstances reflected in the record, the Panel rejects as not credible the Respondent’s assertion that the disputed domain names were registered based on a good faith belief that the domain names’ value derives from their generic or descriptive qualities. Nor, based on the record before this Panel, has the Respondent demonstrated use of the domain names consistent with any such good faith belief. Accordingly, the Respondent has failed to demonstrate rights or legitimate interests in the disputed domain names for purposes of paragraph 4(c)(i).

Nonetheless, it does appear to be undisputed in the record that the Respondent is a reseller of the Complainant’s DIAMOND MATTRESS branded products, although the Respondent by all appearances is not an authorized distributor or dealer of the Complainant’s products. In light of this, the Panel considers the question whether the Respondent as a reseller of the Complainant’s products may be found to have a legitimate interest in the disputed domain names best determined by reference to the fair use principles articulated in Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 (hereinafter “Oki Data”). In Oki Data, the panel concluded that the use of a manufacturer’s trademark as a domain name by even an authorized dealer or reseller could be deemed a “bona fide offering of goods or services” within the meaning of the Policy only if the following conditions are satisfied:

- the respondent must actually be offering the goods or services at issue;

- the respondent must use the site to sell only the trademarked goods (otherwise, there is the possibility that the respondent is using the trademark in a domain name to bait consumers and then switch them to other goods);

- the site itself must accurately disclose the respondent’s relationship with the trademark owner; and

- the respondent must not try to “corner the market” in all relevant domain names, thus depriving the trademark owner of the ability to reflect its own mark in a domain name.

The views articulated in Oki Data are identified as the “majority view” for evaluating domain names of resellers and distributors in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Decision Overview”), at paragraph 2.3. Further, as this Panel has previously noted, the Oki Data approach is consistent not only with the Policy, but also with nominative fair use principles that apply under the trademark law of the United States, which is relevant here given that both parties are from the United States. See Starwood Hotels & Resorts Worldwide Inc., The Sheraton LLC, Sheraton International Inc., Societe des Hotels Meridien, Westin Hotel Management L.P. v. Media Insight a/k/a Media Insights, WIPO Case No. D2010-0211 (hereinafter “Starwood Hotels & Resorts”).

Having regard to all of the relevant circumstances in this case, the Panel finds that the Respondent has not demonstrated, consistent with the fair use principles underlying Oki Data, that before any notice of this dispute the Respondent’s had used or made demonstrable preparations to use the disputed domain names in connection with a bona fide offering of goods or services. It is critical to the establishment of rights or legitimate interests under the Oki Data approach that the reseller make use of the manufacturer’s trademark only insofar as is reasonably necessary, that such use involve only the trademark owner’s products, that the reseller take steps to avoid using of the owner’s mark in a manner likely to cause consumer confusion as to source, sponsorship, affiliation or endorsement, and that the reseller’s website effectively and accurately disclose the relationship with the trademark owner.

In this case, the Respondent registered at least two domain names incorporating the Complainant’s mark in order to attract Internet visitors to the Respondent’s website. While the Respondent may not have set out to “corner the market” in all relevant domain names, the registration of multiple domain names appropriating the Complainant’s mark is inconsistent with the fair use standards articulated in Oki Data. The record further reflects beyond any serious question that the Respondent set out to create a website that appropriates the look and feel of the Complainant’s “official” website, as evidenced by the Respondent’s similar use and placement of the Complainant’s DM DIAMOND MATTRESS mark and logo, the similar use and placement of the Complainant’s slogan “Building Handcrafted Mattresses since 1946”, and the similar use and placement of imagery bearing an strong resemblance to the imagery on the Complainant’s website.

Based on the record before it, the Panel entertains no doubt that the Respondent had the Complainant’s rights in mind when registering the disputed domain names. The Panel finds it most likely that the Respondent registered the disputed domain names in order exploit and profit from the Complainant’s trademark rights. The confusing similarity of the disputed domain names to the Complainant’s mark is likely to result in initial interest confusion. Further, the overall look and “feel” of the Respondent’s website is such that it may easily confuse Internet users with the Complainant’s “official” website. See Levantur, S.A. v. Media Insight, WIPO Case No. D2008-0774.

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Nevertheless, the Respondent makes no attempt to place a conspicuous disclaimer on the home page of its website, or to otherwise clearly disclose the Respondent’s relationship with the Complainant. Instead, The Respondent’s purported disclaimer is to be found only on a secondary page of the website:

The Panel does not consider this to be a sufficient disclaimer under Oki Data. As noted above, there is no disclaimer on the Respondent’s home page, where it would be more likely to be seen by Internet visitors to the site. In addition, the “Contact Us” page conveys the look and feel of the Complainant’s website, and the purported disclaimer does not acknowledge the Complainant’s trademark rights, inform Internet users that the Respondent is not affiliated with the Complainant, or clearly communicate that the website is not sponsored or endorsed by the Complainant.

In light of all of the foregoing circumstances, the Panel finds the Respondent’s registration and use of the disputed domain names in this instance not to be compatible with relevant fair use principles, a finding which under Oki Data is fatal to the Respondent’s claim of rights or legitimate interests in the disputed domain names. The Panel also finds no convincing evidence in the record that the Complainant at any time authorized or acquiesced to the Respondent’s registration and use of the disputed domain names. See BD Real Hoteles, SA de C.V. v. Media Insights aka Media Insight, WIPO Case No. D2009-0958. The Respondent’s argument is premised on the Respondent’s claim that, following the registration of the disputed domain names, the Complainant initially sought changes only to the Respondent’s website content. Even were that the case, it is clear that the Respondent, after being placed on notice by the Complainant, did not in any manner comply with the Complainant’s request, or take other steps to address the likelihood of consumer confusion arising from the unauthorized use of the Complainant’s mark and logo, slogan, and imagery on the Respondent’s website. Under the circumstances at hand, the Respondent’s assertion that the Complainant prior to filing this Complaint had acquiesced or tacitly consented to the Respondent’s registration and use of the disputed domain names is squarely rejected by the Panel.

Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.

D. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration and use of a domain name in bad faith:

(i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of that complainant, for valuable consideration in excess of respondent’s documented out-of-pocket costs directly related to the domain name; or

(ii) circumstances indicating that the respondent 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 the respondent has engaged in a pattern of such conduct; or

(iii) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) circumstances indicating that the respondent is using the domain name to intentionally attempt to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.

The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See, Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. The overriding objective of the Policy is “to curb the abusive registration of domain names in the circumstances where the registrant is seeking to profit from and exploit the trademark of another”. Match.com, LP v. Bill Zag and NWLAWS.ORG, WIPO Case No. D2004-0230. Nevertheless, it is paramount that panels decide cases based on the very limited scope of the Policy. Match.com, LP v. Bill Zag and NWLAWS.ORG, supra. The Policy provides a remedy only in cases where a complainant proves that the domain name “has been registered and is being used in bad faith”.

For the reasons discussed under this and the preceding heading, the Panel considers that the Respondent’s conduct in this case constitutes bad faith registration and use of the disputed domain names within the meaning of paragraph 4(a)(iii) of the Policy. It is clear from the relevant circumstances that the Respondent was aware of the Complainant and had the Complainant’s mark in mind when registering the disputed domain names. The Respondent’s primary motive in relation to the registration and use of the disputed domain names most likely was to capitalize on or otherwise take advantage of the Complainant’s trademark rights, though the creation of initial interest confusion. The Respondent’s website appears to have been intentionally designed to capture the look and feel of the Complainant’s website, and the Respondent in the Panel’s view has failed to effectively or accurately disclose its relationship with the Complainant. In view of the foregoing, The Panel concludes that the Respondent registered and has used the disputed domain names in bad faith under paragraph 4(b)(iv) of the Policy, to intentionally attract Internet users to its website for commercial gain, by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship or affiliation. See Edmunds.com, Inc. v. Ult. Search Inc., WIPO Case No. D2001-1319.

Accordingly, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(iii) of the Policy.

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 disputed domain names <diamondmattress.net> and <diamondmattress.org> be transferred to the Complainant.

William R. Towns
Sole Panelist
November 23, 2010


1 The Complaint refers to the Complainant’s registered mark as “DIAMOND MATTRESS®”. The Panel notes that the Complainant’s registration is for DM DIAMOND MATTRESS (and Design), but it is evident to the Panel that it is the DM DIAMOND MATTRESS registration the Complaint is referring to. The Respondent’s argument that the Complainant is making an improper use of DIAMOND MATTRESS with the ® designation in the Complaint under U.S. law is noted, but the Panel does not consider this germaine to the issues presented for decision in this proceeding under the Policy.

2 While the Respondent asserts that the term “diamond mattress” is a descriptive term commonly used in the relevant industry to refer to mattresses containing a diamond shaped pillow or quilt pattern, the Respondent has provided no probative evidence to support this assertion. Even were the record to contain evidence supporting this assertion, the disputed domain names nonetheless remain confusingly similar with one or more marks in which the Complainant has established rights.

 

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