Montres Charmex S.A. v. Ammann & Co AG
Claim Number: FA0707001036273
Complainant is Montres Charmex S.A. (“Complainant”), represented by Harry
Jacobs, of DomainStatute.com,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <swiss-military.com>, registered with Network Solutions, Inc.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 13, 2007; the National Arbitration Forum received a hard copy of the Complaint on July 13, 2007.
On July 16, 2007, Network Solutions, Inc. confirmed by e-mail to the National Arbitration Forum that the <swiss-military.com> domain name is registered with Network Solutions, Inc. and that the Respondent is the current registrant of the name. Network Solutions, Inc. has verified that Respondent is bound by the Network Solutions, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 23, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 13, 2007 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
An electronic mail communication was received from counsel for Respondent on July 27, 2007. This communication was not submitted in hard copy, however, and therefore was deemed deficient as a Response pursuant to ICANN Rule 5.
A subsequent communication was received on August 10, 2007, from another individual claiming to be acting on Respondent’s behalf. In later correspondence with the Forum this individual stated that the subsequent communication was submitted by mistake, and the Panel therefore disregards the subsequent communication. The Panel also disregards a subsequent submission by Complainant seeking to respond to the communication of August 10, 2007, in the event that it is considered by the Panel.
On August 22, 2007, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant alleges that the disputed domain name is identical or confusingly similar to several of its registered trademarks, including SWISS MILITARY. Complainant further contends that Respondent lacks rights or legitimate interests in respect of the domain name and that Respondent registered and is using the domain name in bad faith.
Respondent’s electronic mail correspondence of July 27, 2007, which the Panel considers in lieu of a formal Response, states as follows: “Please note that Ammann & Co AG decided to cancel the domain name swiss-military.com before the deadline of August 13, 2007.”
The Panel finds that the disputed domain name is identical or confusingly similar to a mark in which Complainant has rights, that Respondent lacks rights or legitimate interests in respect of the disputed domain name, and that Respondent registered and has used the disputed domain name in bad faith.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The disputed domain name is comprised of Complainant’s registered SWISS MILITARY mark, with a hyphen substituted for the space, and with the generic top-level domain suffix “.com” appended. The Panel finds that the domain name is identical to a mark in which Complainant has rights.
Complainant contends that Respondent lacks rights or legitimate interests in respect of the domain name, and in support thereof asserts that Complainant has not authorized Respondent to use its marks, Respondent is not commonly known by the domain name, and Respondent is not making bona fide commercial use or legitimate noncommercial use of the domain name. Respondent has not disputed these allegations, and the Panel therefore finds that Respondent lacks rights or legitimate interests.
Finally, Complainant contends that Complainant registered and is using the disputed domain name in bad faith. In support thereof, Complainant asserts that Respondent had actual notice of Complainant’s marks when it registered the domain name, and for the past two years has used the domain name to attract Internet users to its own commercial website by creating a likelihood of confusion with Complainant’s marks. Again, Respondent has not disputed these allegations, and the Panel finds that Complainant has met its burden of proving that the domain name was registered and is being used in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <swiss-military.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: September 2, 2007
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National Arbitration Forum