WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Thierry Mugler v. Registration Private, Domains By Proxy, LLC / Online Management
Case No. D2013-2011
1. The Parties
The Complainant is Thierry Mugler of Paris, France, represented by Tmark Conseils, France.
The Respondent is Registration Private, Domains By Proxy, LLC of Arizona, Scottsdale, United States of America / Online Management of Grand Cayman, Cayman Islands, Overseas Territory of United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <thierymugler.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 25, 2013. On November 26, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 27, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 28, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on December 2, 2013.
The Center verified that the Complaint together with the amended 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 3, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was December 23, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 24, 2013.
The Center appointed Anders Janson as the sole panelist in this matter on January 7, 2014. 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 produces perfumes and fashion clothing. The first Thierry Mugler perfume “Angel” was launched in 1992.
The Complainant owns several trademarks worldwide and the trademark THIERRY MUGLER was registered on April 13, 1992 having effects in France. Further the trademark THIERRY MUGLER was registered on April 2, 1996 having effects in the European Union, on June 3, 2004 having effect in Canada, on September 24, 1992 having effects in the Unites States, on October 9, 1992, having effects in China and on September 13, 1976, having effects in Australia.
The trademark THIERRY MUGLER also constitutes the registered company name of the Complainant, and the Complainant is further the owner of the domain name <mugler.com>, registered on February 16, 2000.
The disputed domain name was <thierymugler.com> was created on April 28, 2013.
5. Parties’ Contentions
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy is present in this case.
The disputed domain name <thierymugler.com> is confusingly similar to the Complainant’s company name and trademark THIERRY MUGLER. The word “thiery mugler” is clearly omitting the letter “r” of the double “r” of the first name “Thierry”, thus misspelling the well-known trademark THIERRY MUGLER. This omission is “typosquatting”, and there are many previous UDRP cases where the domain name has been found confusingly similar to a trademark further to the omission of a letter.
The Respondent is not affiliated in any manner to the Complainant, and has never been authorized to use or register in any way the name “Mugler” or “Thierry Mugler”, including as a domain name. The Respondent is not making a noncommercial or a fair use of the disputed domain name. The disputed domain name has been used by the Respondent to redirect Internet users towards websites related to products produced by the Complainant. This cannot be regarded as a bona fide use of the disputed domain name.
The Complainant was already extensively using the trademark THIERRY MUGLER before the Respondent registered the disputed domain name. The offending website displays sponsored links to commercial websites offering goods identical to those covered by the Complainant’s trademark, more particularly the Complainant’s direct competitors’ goods. The Respondent is exploiting the Complainant’s trademark in order to gain “click through” commissions from the diversion of Internet users, which is a common example of registration and use in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Given the case file and the Respondent’s failure to file a response, the Panel, where appropriate accepts as true the contentions of the Complainant. The Respondent’s default does not however automatically lead to a ruling decision for the Complainant. To the contrary the Complainant still must establish that under the Policy it is entitled to a transfer of the domain name.
The Policy provides that, to justify a transfer of the disputed domain name, the Complainant must prove each of the following (paragraph 4 (a) of the Policy):
(i) that the disputed 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) 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.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has right to the registered trademark THIERRY MUGLER.
Further, the Panel finds that the disputed domain name is confusingly similar to the trademark THIERRY MUGLER. The disputed domain name only differs from the trademark in the omission of a single letter “r” and the addition of the generic Top-Level-Domain (gTLD) suffix “.com”. Moreover, Internet users interested in accessing the Complainant’s website might thereby arrive at the Respondent’s website when seeking information about the Complainant. When this is likely to happen, a domain name is to be regarded as confusingly similar to an established mark.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
In this case, the Complainant has offered convincing explanations and enough evidence of its exclusive rights concerning the mark THIERRY MUGLER. The Panel finds that the Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. Therefore, the burden of production shifts to the Respondent to bring forward appropriate allegations or evidence of its rights or legitimate interests, if such evidence exists. The Respondent has failed to provide any evidence of rights or legitimate interests in the disputed domain name, and failed to counter the Complainant’s arguments. Such failure by the Respondent to file a response leaves the Panel to decide the case on the basis of the available record and the evidence provided by the Complainant. Accordingly, upon consideration of the record and the evidence provided by the Complainant, the Panel is satisfied that the Respondent has no rights or legitimate interests in the disputed domain name.
The Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Panel finds that the Complainant’s trademark THIERRY MUGLER is a well-known mark and further that it is highly unlikely that the Respondent, by utter accident would have registered the disputed domain name. Accordingly, the Panel finds that the Respondent must have chosen the disputed domain name deliberately to trade on the Complainant’s reputation to attract Internet users to a webpage containing sponsored links to competing third party websites for commercial gain by creating a likelihood of confusion with the Complainant’s trademark. This constitutes evidence of registration and use of the domain name in bad faith in accordance with the Policy. There is no material in the record which displaces this presumption.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4 (a)(iii) of the Policy.
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 <thierymugler.com> be transferred to the Complainant.
Date: January 13, 2014