WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Swarovski AG v. Numan Oztas
Case No. DNU2019-0002
1. The Parties
The Complainant is Swarovski AG, Liechtenstein, represented by Lorenz Seidler Gossel, Germany.
The Respondent is Numan Oztas, Belgium.
2. The Domain Name and Registrar
The disputed domain name <swarovski.nu> (the “Domain Name”) is registered with One.com A/S (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 14, 2019. On August 14, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On August 15, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 15, 2019 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 amendment to the Complaint on August 20, 2019. On August 20, 2019, the Respondent sent email communications to the Center regarding the proceedings. On August 21, 2019, the Center sent the possible settlement email to the Parties, but no request for suspension was received from the Complainant.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 3, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 23, 2019. The Center received an email communication from the Respondent on September 5, 2019. The Respondent did not submit any formal response. Accordingly, the Center notified the Commencement of Panel Appointment Process on September 25, 2019.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on October 1, 2019. 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 is a producer of cut crystal, gemstones and creates stones which it uses in connection with crystal jewelry, home accessories, collectibles and lighting industries. It has production facilities in 18 countries, employs more than 30,000 people worldwide and is present in more than 120 countries. In 2014, the Complainant’s approximate revenues amounted to more than EUR 3 billion.
The Complainant owns trademarks for the name SWAROVSKI worldwide, for instance, United States of America trademark No. 0934915, registered on May 30, 1972.
The Complainant has registered several domain names and has initiated many UDRP complaints throughout the years in order to protect its trademark.
According to the Registrar, the Domain Name was registered by the Respondent with the Registrar on September 1, 2014. At the time of filing the Complaint, the Domain Name resolved to a website offering jewelry. At the time of drafting this decision, the Domain Name redirected to a host website.
5. Parties’ Contentions
The Complainant argues its trademark is widely recognized by consumers around the world and the Domain Name is identical to said trademark.
The Complainant asserts that the Respondent is not sponsored or related in any way with the Complainant. The Respondent has never been authorized to use the Domain Name. The Respondent has used the Domain Name to redirect to a website offering jewelry, but not goods made by the Complainant. The website does not offer information of the Complainants goods. This is not legitimate or fair use of the Domain Name.
The Complainant argues that mere holding the registration of well-known trademark as a domain name is a clear indication of bad faith. Given the fame of the SWAROVSKI trademark, it is obvious to the Complainant that the Respondent was aware of the Complainant and its trademark when the Respondent registered the Domain Name. Moreover, the Respondent’s use of the Domain Name is evidence of bad faith registration and use. The Domain Name was registered to attract, for commercial gain, Internet searchers to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of the website. The registration is in the Complainant’s view made in order to exploit the consumer’s confusion for commercial gain.
The Respondent did not send a formal Response to the Complaint. He sent however emails to the Center on August 20, 21, 25, and September 5, 2019. The latter quotes:
“I don’t understand much of the documents you send because my English is not good. To solve this problem, I am closing my website from today. I don’t know what else I can do My website is for commercial purposes site. It is an established site for market research that has not been sold so far. To solve the problem can not reach the site can not complain closed. I don’t know what else I can do.”
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established trademark rights. The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name is identical to the Complainant’s trademark. For the purpose of assessing confusing similarity, it is permissible for the Panel to ignore the country code Top-Level Domain (“ccTLD”) “.nu”, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.
The Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register a domain name containing the Complainant’s trademark or otherwise make use of the trademark. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way. There is no evidence that the Respondent has registered the Domain Name as a trademark or acquired unregistered rights. The Respondent has used the Domain Name to redirect to a website offering jewelry, but not goods made by the Complainant or information of the Complainant. This is not bona fide.
The Panel finds the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Taking into account the fame of the Complainant’s trademark and the Respondent’s use of the Domain Name, the Panel concludes that the Respondent knew of the Complainant and its business when the Respondent registered the Domain Name.
The Respondent has attempted to attract Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website. The fact that the Respondent has not properly replied to the Complaint, further points to bad faith.
The Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of 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 Domain Name <swarovski.nu> be transferred to the Complainant.
Date: October 7, 2019