Montres Charmex S.A. v.
Ammann & Co AG
Claim Number: FA0707001036273
PARTIES
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.
PANEL
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.
PROCEDURAL HISTORY
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 postmaster@swiss-military.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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. 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.
B. Respondent
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.”
FINDINGS
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.
DISCUSSION
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.
DECISION
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
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