WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Richemont International SA v. Nancy Greenfeather
Case No. D2016-1292
1. The Parties
The Complainant is Richemont International SA of Freiburg, Switzerland, represented internally.
The Respondent is Nancy Greenfeather of Vian, Oklahoma, United States of America.
2. The Domain Name and Registrar
The disputed domain name <vacheron-constentin.com> is registered with Google Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 24, 2016. On June 27, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 28, 2016, 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 June 29, 2016 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 July 1, 2016.
The Center verified that the Complaint and 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 7, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 27, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 28, 2016.
The Center appointed Marilena Comanescu as the sole panelist in this matter on August 4, 2016. 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 language of the proceeding is English.
4. Factual Background
The Complainant is the owner of VACHERON CONSTANTIN trademark for luxury watches. The trade name Vacheron Constantin origins back in 1755, being thus the oldest continuous watch maker in the world.
All genuine VACHERON CONSTANTIN watches are distributed throughout a worldwide network of Vacheron Constantin boutiques and authorized retailers. According to the Complainant’s assertions, there are currently over 280 authorized retailers worldwide and over 40 exclusive boutiques located in strategic cities across the globe. Vacheron Constantin operates its website at “www.vacheron-constantin.com”.
The Complainant has rights over the VACHERON CONSTANTIN (and design) mark for which it holds the following trademark registrations: International registration No. 834,944 registered on October 6, 2004 for goods in class 14 with protection extended in the United States; Canadian registration Nos. TMA712990 and UCA12,779 registered on April 28, 2008, respectively May 26, 1939 for goods covering watches and Swiss registration No. P-408839 registered on March 29, 2013 featuring watches.
The disputed domain name was created on May 4, 2016. At the time of filing the Complaint, the disputed domain name was held inactive.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar to its trademark VACHERON CONSTANTIN, the Respondent has no rights or legitimate interests in the disputed domain name and the Respondent registered and is using the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In view of the Respondent’s default, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met:
(i) the disputed domain name 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 in the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has rights in the VACHERON CONSTANTIN trademark, holding registrations worldwide.
The disputed domain name <vacheron-constentin.com> incorporates the Complainant’s trademark VACHERON CONSTANTIN in its entirety with one letter misspelled, an “e” instead of “a”. The majority of the UDRP panels have considered that a domain name which contains a common or obvious misspelling of a trademark normally will be found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the domain name. See, paragraph 1.10 of theWIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
Further, it is well established in decisions under the UDRP that the presence or absence of spaces, characters (e.g., hyphens, dots) in a domain name and indicators for generic Top Level Domains (e.g., “.com”, “.info”, “.net”, “.org”) are typically irrelevant to the consideration of confusing similarity between a trademark and a domain name.
Given the above, the Panel finds that the disputed domain name <vacheron-constentin.com> is confusingly similar to the Complainant’s trademark VACHERON CONSTANTIN, pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Complainant asserts that it has given no license or other right to use or register its trademark to the Respondent, that the Respondent is not commonly known by the disputed domain name and that the Respondent has not used the disputed domain name in connection with a legitimate noncommercial or fair use or a bona fide offering of goods and services. In line with previous UDRP decisions, the Panel accepts that the Complainant has provided a prima facie case of the Respondent’s lack of rights or legitimate interests in relation to the disputed domain name, and the burden of production shifts to the Respondent.
The Respondent chose not to challenge the Complainant’s allegations. There is no evidence before the Panel to support the contrary, and therefore the Panel accepts these arguments as facts.
The disputed domain name was held passively at the time of filing the Complaint. Under the circumstances, such use cannot give rise to any rights or legitimate interests in the disputed domain name.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The Complainant holds trademark registrations for VACHERON CONSTANTIN including since 2004 in the United States where the Respondent is apparently located. Further, the Vacheron Constantin trade name is used in commerce since 1755.
The disputed domain name <vacheron-constentin.com> was registered in 2016 and reproduces the VACHERON CONSTANTIN trademark with a common misspelling.
At the time of filing the Complaint the disputed domain name was held passively. Nevertheless, this state of inactivity does not mean that the disputed domain name is used in good faith. According to the majority view of UDRP panels1 , “with comparative reference to the circumstances set out in paragraph 4(b) of the UDRP deemed to establish bad faith registration and use, UDRP panels have found that the apparent lack of so-called active use (e.g., to resolve to a website) of the domain name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether the respondent is acting in bad faith. Examples of what may be cumulative circumstances found to be indicative of bad faith include the complainant having a well-known trademark, no response to the complaint having been filed and the registrant’s concealment of its identity (…)”.
The trademark VACHERON CONSTANTIN is distinctive and the Respondent did not provide response to the Complaint and thus arguments for choosing such name and keeping the disputed domain name inactive. Further, the Respondent has registered the disputed domain name under a privacy shield.
Given all the other circumstances of the case, such behavior may be considered as evidence of bad faith.
For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name <vacheron-constentin.com> in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
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 <vacheron-constentin.com> be transferred to the Complainant.
Date: August 16, 2016