WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Christian Dior Couture v. Mumbai Domains
Case No. D2010-2274
1. The Parties
The Complainant is Christian Dior Couture of Paris, France, represented by Cabinet Marc Sabatier, France.
The Respondent is Mumbai Domains of Mumbai, Maharashtra, India.
2. The Domain Name and Registrar
The Disputed Domain Name <wwwdior.com> is registered with Fabulous.com Pty Ltd in Brisbane, Australia.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 27, 2010. On December 28, 2010, the Center transmitted by email to Fabulous.com a request for registrar verification in connection with the Disputed Domain Name. On December 29, 2010, Fabulous.com transmitted to the Center its verification response, by an email addressed incorrectly to the National Arbitration Forum, advising that the registrant of the Disputed Domain Name is “Mumbai Domains Namase Patel” 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”) as approved by the InternetCorporation for Assigned Names and Numbers (“ICANN”) on October 24, 1999, the Rules forUniform Domain Name Dispute Resolution Policy (the “Rules”) as approved by ICANN on October 30, 2009, and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”) in effect as of December 14, 2009.
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 January 5, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was January 25, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 26, 2011.
The Center appointed Philip N. Argy as the sole panelist in this matter on February 1, 2011. 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.
All other procedural requirements appear to have been satisfied.
The Panel recommends that Fabulous.com Pty Ltd be asked to take greater care with the accuracy and completeness of its responses to Center (and other UDRP Providers) verification requests as these are an important element in protecting the integrity of the operation of the Policy and the Rules.
4. Factual Background
The Complainant’s trademark, DIOR, is registered throughout the world (including India) in respect of a wide range of goods including shoes, hand bags, leather goods, clothing, sunglasses, headgear, jewellery, watches, fragrances and “horological and chronometric” instruments.
The Disputed Domain Name was first registered on October 6, 2004. It resolves to a website with links to several websites for products such as handbags, women’s clothing, women’s shoes and the like.
5. Parties’ Contentions
In support of the three grounds entitling it to relief under the Policy the Complainant submits the following basic arguments:
A. The Disputed Domain Name is identical or confusingly similar to a trademark in which the Complainant has rights.
The Disputed Domain Name incorporates the Complainant’s exact trademark DIOR. An affiliate of the Complainant owns the domain name <dior.com> and numerous derivative domain names under many ccTLDs. The official website for Dior branded products is accessed with the URL “www.dior.com”.
B. The Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.
There is no authorisation for the Respondent to use the DIOR trademark, nor to incorporate it in a domain name nor to operate the website to which the Disputed Domain Name resolves. Nor is the Respondent known as <wwwdior.com>.
C. The Disputed Domain Name was registered and is being used in bad faith.
As the Complainant and its marks are very well-known throughout the world, it is impossible for the Respondent to have registered the Disputed Domain Name without being well aware of the Complainant’s DIOR trademark and, given the use to which the Disputed Domain Name is being put, and the nature of the goods and services promoted on the website to which it resolves, it can be inferred that the Respondent is perfectly well aware of the Complainant and its products.
By using the Disputed Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the Respondent’s web site, by creating a likelihood of confusion with the Complainant’s DIOR trademark.
The Complaint also shows that, on or about August 5, 2010, the Complainant’s attorney sent a cease and desist letter to the Respondent pointing out that the Disputed Domain Name was “strictly identical to our client’s trademarks”, noting that the Disputed Domain Name creates a likelihood of confusion with “our client’s rights”, and politely requesting the cessation of use of the Disputed Domain Name and its transfer to the Complainant. No response to that letter has ever been received by the Complainant or its attorney.
The Respondent did not respond in any way to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Disputed Domain Name self-evidently embodies the Complainant’s famous DIOR mark in classic typosquatting form and the Panel has no hesitation in finding the Disputed Domain Name to be confusingly similar to the Complainant’s DIOR trademark.
B. Rights or Legitimate Interests
There has been discussion in a number of cases under the Policy about the role of laches and whether it creates substantive rights. This Panel has frequently expressed the view (most recently in respect of the .au Dispute Resolution Policy (auDRP) case,Colmar Brunton Pty Ltd v. Alta Computer Systems Pty Ltd, relating to the domain name <opinionspaid.com.au>, that, under the second limb of the Policy the longer an aware trade mark owner takes to indicate to a prospective respondent that its conduct is not acceptable and is to be challenged, the greater the comfort level the putative respondent is likely to have in the continued use of its domain name. The Panel wishes to stress that this principle can only be utilised where the respondent’s conduct is otherwise plausibly bona fide. In this case the Disputed Domain Name has been registered since 2004 without apparent challenge by the Complainant. A six year period of unchallenged bona fide use could in some circumstances be a source of legitimate interest and the Panel has considered this possibility. However, the finding that the Respondent is engaged in typosquatting, and the balance of the evidence, does not support a finding of bona fide use during that period. Indeed the evidence points so strongly to the contrary that, absent a submission from the Respondent expressly asserting reliance on that time period as grounding an honest belief of some kind, the Panel finds easily in the Complainant’s favour under this limb of the Policy.
As a general principle, the Panel takes the view that, once a respondent is found to be typosquatting, it cannot avoid an inference that there is no legitimacy in its use of a complainant’s trademark without lodging a response to explain its conduct. Here the Respondent has ignored the Complaint (as it ignored the Complainant’s attorney’s warning letter) and the Panel can discern no basis on which the Respondent could regard itself as having the slightest legitimate interests or rights in respect of the Disputed Domain Name.
There is no basis on which the Panel can find the Respondent to have any legitimate interests or rights in respect of the Disputed Domain Name.
C. Registered and Used in Bad Faith
The Disputed Domain Name is self-evidently intended to intercept and divert Internet users who mistype “www.dior.com”, which is the URL for the official Dior website. Paragraph 4(b)(vi) of the Policy encompasses typosquatting conduct, and deems it to be evidence of bad faith registration and use. The Panel finds that paragraph to be applicable and declares the Respondent to be engaged in typosquatting conduct in its use of the Disputed Domain Name.
The website to which the Disputed Domain Name resolves is simply a raw monetisation page with prominent links to sites that sell products of the same kind as those in respect of which the Complainant’s DIOR trademarks are registered and used. It also contains opportunistic links for travel, finance and other categories of products and services. In this Panel’s view, websites that have no raison d’être other than domain name monetization are the Internet equivalent of a public nuisance and can never in and of themselves be considered good faith noncommercial conduct. Their utility to the site or domain name owner relies entirely on visitors having been attracted there by use of a domain name that is identical or confusingly similar either to someone else’s trademark or to a URL which points to a legitimate site, or to the site acting as a faux portal. This Panel considers it tantamount to hijacking of the Domain Name System. Similarly, this Panel considers search engines that list such sites are doing a disservice to the Internet community as the sites have no intrinsic value and are highly unlikely to provide a desired response to any search that a user may have conducted. If long term domain name parking pages and pure domain name monetization sites (as distinct from, for example, bona fide subject matter portal sites) were removed from search retrieval lists, or relegated to the end of any search results listing, it seems to this Panel the commercial incentive for the majority of cybersquatting and typosquatting would very likely be removed. In an ideal world this is an area that ICANN might usefully explore, including the critical questions of who ultimately benefits and at what cost to affected rights holders, although the Panel appreciates that the amounts of money being earned from domain name registration and such monetisation around the world support a powerful lobbying effort that will make it difficult to remove this scourge.
In any event, on the record in the present case, the Panel formally finds that the Disputed Domain Name was registered in bad faith for the sole purpose of typosquatting on the URL of the official Dior website at “www.dior.com” and that it is still being used in bad faith for that purpose.
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 Name <wwwdior.com> be transferred to the Complainant.
Philip N. Argy
Dated: February 3, 2011