WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Swarovski Aktiengesellschaft v. linyuan zhang
Case No. D2012-0259
The Complainant is Swarovski Aktiengesellschaft of Triesen, Liechtenstein, represented by LegalBase, Sri Lanka.
The Respondent is linyuan zhang of China.
2. The Domain Name and Registrar
The disputed domain name <swarovskiaustralia.com>is registered with Chengdu West Dimension Digital Technology Co., Ltd.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 10, 2012. On February 10, 2012, the Center transmitted by email to Chengdu West Dimension Digital Technology Co., Ltd. a request for registrar verification in connection with the disputed domain name. On February 16, 2012, Chengdu West Dimension Digital Technology Co., Ltd. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
As confirmed by the Registrar, the Registration Agreement was in Chinese. The Center sent out an email regarding the language of the proceedings to both the Complainant and the Respondent on February 20, 2012. On February 20, 2012, the Complainant transmitted an email to the Center requesting English to be the language of the proceedings. The Respondent did not respond. The Center conducted these proceedings in both English and Chinese.
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 February 28, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was March 19, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 21, 2012.
The Center appointed Douglas Clark as the sole panelist in this matter on March 30, 2012. 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.
Language of Proceedings
The language of the Registration Agreement is in Chinese. Paragraph 11(a) of the Rules provides that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The Complainant requested the language of the proceeding for <swarovskiaustralia.com> be in English on the grounds that the Complainant is not familiar with the Chinese language and that the international language of business in English. “Moreover, the website previously hosted at this domain name was in English which clearly demonstrates that the Respondent has proficiency and is able to communicate in English.”
In this case, the latter point is decisive. The website associated with the disputed domain name <swarovskiaustralia.com> was, before it failed to resolve to an active website, written entirely in English and claimed to represent Swarovski Australia. English is the official language in Australia. Further, the Respondent has not responded to the proceedings nor to the request that the language of the proceeding to be in English. In the circumstances of this case, the Panel, therefore, determines that English shall be the language of the proceedings. The website under the disputed domain name was written entirely in English and designed to do business in Australia in English. There can be no doubt that the Respondent is able to handle these proceedings in English.
4. Factual Background
The Complainant is the registered proprietor of the trademark SWAROVSKI, registered and used for different kinds of goods and services in different classes, including jewellery. The Complainant has trademark registrations globally, including in China and Australia. The first mark was registered in China in 1987 and in Australia in 1968.
The disputed domain name <swarovskiaustralia.com> was registered on December 4, 2011. Until recently, it resolved to a webpage in English where Swarovski jewellery was advertised and sold under the name “Swarovski Australia.”
5. Parties’ Contentions
Identical or confusingly similar
The Complainant argues that the disputed domain name <swarovskiaustralia.com> is made up of the registered trademark SWAROVSKI, to which the geographic term “Australia” has been added. Consumers looking for the Complainant in Australia online may accidentally type the disputed domain name into their computers and arrive at the webpage of the Respondent, mistakenly thinking that it is affiliated, sponsored or somewhat connected with the Complainant. It is therefore confusingly similar to the Complainant’s trademark by at the least creating initial interest confusion with the trademark SWAROVSKI.
Rights or legitimate interests
The Complainant submits that the Respondent has not been known by the name “Swarovski” and the Respondent has no connection with the Complainant or any of its affiliates.
In particular, the Complainant submits that the website to which the disputed domain name resolves to is used to sell products that claim to be Swarovski products and is clearly for the purpose of misleading consumers.
Registered and used in bad faith
The Complainant submits that there is no doubt that before registration of the disputed domain name, the Respondent knew of the Complainant’s rights in the trademark SWAROVSKI. The Complainant argues that the unauthorized sale of products by the Respondent on the website “www.swarovskiaustralia.com” and giving Internet users the impression of the website selling genuine products of the Complainant is clearly use of the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In this Panel’s view, this is a very simple case of clear domain name hijacking for the purposes of commercial gain which the UDRP was designed to stop.
A. Identical or Confusingly Similar:
The disputed domain name <swarovskiaustralia.com> is made up of the registered trademark SWAROVSKI and a geographical term. The disputed domain name is clearly confusingly similar to the registered trademark SWAROVSKI. The Panel finds the first part of the paragraph 4(a) of the Policy is therefore satisfied.
B. Rights or Legitimate Interests:
The Respondent has not responded to the Complaint to assert any rights or legitimate interests.
The use made by the Respondent of the website under the disputed domain name <swarovskiaustralia.com> where the Complainant’s trademark features prominently makes it hard to imagine that the Respondent could ever establish any rights or legitimate interests.
None of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can prove its rights or legitimate interests, are present in this case. The Panel finds the second part of the paragraph 4(a) of the Policy is therefore satisfied.
C. Registered and Used in Bad Faith:
For the same reasons as those above, the Panel has no hesitation in finding that the disputed domain name <swarovskiaustralia.com> was registered in bad faith and is being used in bad faith.
This case clearly falls within paragraph 4(b)(iv) of the Policy which provides that a registrant has registered and is using a domain name in bad faith where:
“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site 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 your web site or location or of a product or service on your web site or location.”
The Panel finds that the third part of paragraph 4(a) of the Policy is satisfied.
For 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 <swarovskiaustralia.com> be transferred to the Complainant.
Dated: April 13, 2012