Givenchy
Claim Number: FA0803001156376
Complainant is Givenchy S.A. (“Complainant”), represented by J.
Andrew Coombs, of J. Andrew Coombs, A Professional
Corporation,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <givenchywatch.com>, <givenchytime.com>, <givenchytimepieces.com>, <givenchy-watch.com>, <givenchitime.com>, <givinchitime.com>, and <givinchytime.com>, registered with Godaddy.com, 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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On March 6, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 26, 2008 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@givenchywatch.com, postmaster@givenchytime.com, postmaster@givenchytimepieces.com, postmaster@givenchy-watch.com, postmaster@givenchitime.com, postmaster@givinchitime.com, and postmaster@givinchytime.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <givenchywatch.com>, <givenchytime.com>, <givenchytimepieces.com>, <givenchy-watch.com>, <givenchitime.com>, <givinchitime.com>, and <givinchytime.com> domain names are confusingly similar to Complainant’s GIVENCHY mark.
2. Respondent does not have any rights or legitimate interests in the <givenchywatch.com>, <givenchytime.com>, <givenchytimepieces.com>, <givenchy-watch.com>, <givenchitime.com>, <givinchitime.com>, and <givinchytime.com> domain names.
3. Respondent registered and used the <givenchywatch.com>, <givenchytime.com>, <givenchytimepieces.com>, <givenchy-watch.com>, <givenchitime.com>, <givinchitime.com>, and <givinchytime.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Givenchy S.A.,
is an internationally recognized producer of high fashion apparel and
accessories, and quality perfume.
Complainant holds numerous trademark registrations with the United
States Patent and Trademark Office (“USPTO”) for the GIVENCHY mark (i.e. Reg.
No. 942,407 issued
Respondent, Swiss Watch
International, registered the disputed domain names on
Paragraph 15(a) of 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."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
Complainant alleges rights to the GIVENCHY mark through its
trademark registrations with the USPTO.
The Panel finds that these trademark registrations sufficiently confer
rights to Complainant pursuant to Policy ¶ 4(a)(i). See Enterprise Rent-A-Car Co. v. David Mizer Enters., Inc., FA
622122 (Nat. Arb. Forum
Four of the disputed domain names contain Complainant’s mark in its entirety, while the other three slightly misspell the mark. See Royal Bank of Scot. Group plc. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (“The Panel finds that merely by misspelling Complainants’ mark, Respondent has not sufficiently differentiated the <privelage.com> domain name from the PRIVILEGE mark under Policy ¶ 4(a)(i).”). All of the disputed domain names also add one or more of the generic words “watch,” “time,” and “pieces,” all of which relate to Complainant’s business. See Whitney Nat’l Bank v. Easynet Ltd, FA 944330 (Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an obvious relationship to Complainant’s business and a gTLD renders the disputed domain name confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).”). As the foregoing decisions demonstrate, neither the misspelling of Complainant’s mark nor the addition of generic terms related to its business, sufficiently distinguish the domain name within the meaning of Policy ¶ 4(a)(i).
One of the disputed domain names adds a hyphen, but this is
considered irrelevant under the Policy. See Health Devices Corp. v.
Therefore, the Panel finds that none of these changes make
the disputed domain names distinct from Complainant’s mark, thus rendering them
confusingly similar pursuant to Policy ¶ 4(a)(i).
Complainant has alleged that Respondent does not have rights or legitimate interests in the disputed domain names. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests under Policy ¶ 4(a)(ii). Based upon the allegations made in the Complaint, the Panel finds that Complainant has established a prima facie case pursuant to Policy ¶ 4(a)(ii). See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interest in the subject domain names.”). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). Although Respondent has not responded to the Complaint, the Panel will nevertheless examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant alleges that Respondent is not commonly known by
the disputed domain names, and is not authorized to register domain names
containing Complainant’s GIVENCHY mark.
Because the WHOIS information identifies Respondent as “Swiss Watch
International,” this supports the contention that Respondent is not commonly
known by the disputed domain names; thus, the Panel concludes that Respondent
lacks rights and legitimate interests pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July
7, 2006) (concluding that the respondent was not commonly known by the disputed
domain names where the WHOIS information, as well as all other information in
the record, gave no indication that the respondent was commonly known by the
disputed domain names, and the complainant had not authorized the respondent to
register a domain name containing its registered mark); see also RMO,
Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum
Respondent previously used the disputed domain names to
offer products of Complainant’s competitors.
Respondent now uses the disputed domain names to display a list of
hyperlinks to unrelated products. The
Panel finds neither of these uses to be in connection with a bona fide offering of goods or services
under Policy ¶ 4(c)(i), or a legitimate noncommercial
or fair use under Policy ¶ 4(c)(iii). See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting
customers, who are looking for products relating to the famous SEIKO mark, to a
website unrelated to the mark is not a bona fide offering of goods or services
under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under
Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
With respect to both Respondent’s previous and current uses, customers are likely to be confused as to the source and sponsorship of the content posted to the websites that resolves from the disputed domain names. Respondent is attempting to profit off the goodwill associated with Complainant’s GIVENCHY mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name); see also Metropolitan Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because Respondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”).
The Panel finds that Policy ¶ 4(a)(iii)
has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <givenchywatch.com>, <givenchytime.com>, <givenchytimepieces.com>, <givenchy-watch.com>, <givenchitime.com>, <givinchitime.com>, and <givinchytime.com> domain names be TRANSFERRED from Respondent to Complainant.
Dated: April 15, 2008
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