LVMH SWISS MANUFACTURES SA v. Mikhail Polikutin
Claim Number: FA1504001614578
Complainant: LVMH SWISS MANUFACTURES SA of La Chaux-de-Fonds, Switzerland.
Complainant Representative: DOMAINOO of Paris, France.
Respondent: Mikhail Polikutin of Yaroslavl, Russia.
REGISTRIES and REGISTRARS
Registries: Foundation for Assistance for Internet Technologies and Infrastructure Development (FAITID)
Registrars: Regional Network Information Center, JSC dba RU-CENTER
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Examiner in this proceeding.
Petter Rindforth, as Examiner.
Complainant submitted: April 15, 2015
Commencement: April 21, 2015
Default Date: May 6, 2015
Having reviewed the communications records, the Examiner finds that the Forum has discharged its responsibility under URS Procedure Paragraphs 3 and 4 and Rule 4 of the Rules for the Uniform Rapid Suspension System (the "Rules").
Complainant requests that the domain name be suspended for the life of the registration.
Clear and convincing evidence.
The Complainant is the owner of the trademark TAG HEUER, registered in a number of countries/regions, such as:
International Trademark registration No. 689 200 TAG HEUER (word), registered on March 24, 1998, and renewed until March 24, 2018, covering goods in class 14, and valid in Austria, Benelux, China, Cuba, Czech Republic, Germany, Denmark, Algeria, Egypt, Spain, Finland, France, United Kingdom, Croatia, Hungary, Italy, Democratic People’s Republic of Korea, Liechtenstein, Lituania, Latvia, Marocco, Monaco, Montenegro, Norway, Poland, Portugal, Romania, Serbia, Russian federation, Sudan, Sweden, Slovenia, Slovakia, San Marino, Ukraine, Vietnam, Serbia and Montenegro.
The Complainant has provided evidence of use by documentation showing that the trademark has been validated by the Trademark Clearinghouse.
There is no information on the Respondent, other than provided by the Complainant, as the Respondent has not responded.
Legal Findings and Conclusion:
Even though the Respondent has defaulted, URS Procedure 1.2.6, requires Complainant to make a prima facie case, proven by clear and convincing evidence, for each of the following three elements to obtain an order that a domain name should be suspended.
IDENTICAL OR CONFUSINGLY SIMILAR
The Complainant met the standard sets out in 126.96.36.199. of the URS Procedure since the Complainant has proved its right to the valid International Trademark registration No. 689 200 TAG HEUER (word). Further, the Complainant has proved that the said trademark is in current use by presenting validation by the Trademark Clearinghouse.
The relevant part of the disputed domain name is <tagheuer>, as the added top-level domain – being a required element of every domain name – is generally irrelevant when assessing whether or not a mark is identical or confusingly similar and in this case does nothing to distinguish the disputed domain name from the Complainant’s trademark. Further, the fact that the complainant’s trademark is written as two separate words whereas the disputed domain name is written in one word makes no difference as there are, for pure technical reasons, only two ways to create a domain name based on a two worded trademark: either write the two worded trademark with a hyphen, or – as in this specific case – combining the two words into one.
The Examiner concludes that the disputed domain name is identical or confusingly similar to the Complainant's trademark TAG HEUER.
NO RIGHTS OR LEGITIMATE INTERESTS
The Respondent does not have any rights in <tagheuer.moscow> as the Complainant has not authorized the Respondent to register a domain name containing its registered and used trademark TAG HEUER, nor is the Respondent commonly known by <tagheuer.moscow>.
As TAG HEUER is a distinctive and well known trademark, the Examiner also draw the conclusion that the Complainant has shown that the Respondent cannot have any legitimate interests in registering and using <tagheuer.moscow>.
To summarize, the Examiner find that the Complainant has established that the Respondent has no rights or legitimate interests in <tagheuer.moscow>.
BAD FAITH REGISTRATION AND USE
The According to the URS Procedure 188.8.131.52, examples of circumstances that demonstrate bad faith registration and use by the Registrant include:
a. Registrant has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of pocket costs directly related to the domain name; or
b. Registrant has registered the domain name in order to prevent the trademark holder or service mark from reflecting the mark in a corresponding domain name, provided that Registrant has engaged in a pattern of such conduct; or
c. Registrant registered the domain name primarily for the purpose of disrupting the business of a competitor; or
d. By using the domain name Registrant has intentionally attempted to attract for commercial gain, Internet users to Registrant’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.
In this case, the Complainant has shown that the Respondent, although not traditionally actively using the disputed domain name, it is linked to a page with the message “Page Web inaccessible” thereby creating confusion for Moscow customers seeking information on the Complainat’s goods.
The Respondent is also known to register and using other’s trademarks in bad faith under the .moscow TLD, see Deutsche Lufthansa AG v. Mikhail Polikutin, FA1412001594683, Forum of January 12, 2015; Kingfisher France v. Mikhail Polikutin, FA1501001598577, Forum of January 23, 2015; and Ulysse Nardin Le Locle S.A v Mikhail Polikutin, FA1501001602003, Forum of February 18, 2015.
Although the Respondent has not responded, the use as such strongly indicates that the Respondent has registered and is using <tagheuer.moscow> in a way that is clearly negative for the Complainant, in order to force the Complainant to offer to buy it for valuable consideration in excess of documented out-of pocket costs directly related to the domain name. In any case, the Complainant has proved it likely that the Respondent is using, or at least in the final preparatory phase, to use the disputed domain name to attract for commercial gain, Internet users to Registrant’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Registrant’s web site or location or of a product or service on that web site or location.
Thus, the Examiner concludes that the Complainant has established that the Respondent has registered and used <tagheuer.moscow> in bad faith.
After reviewing the Complainant’s submissions, the Examiner determines that
the Complainant has demonstrated all three elements of the URS by a standard of clear and convincing evidence; the Examiner hereby Orders the following domain name be SUSPENDED for the duration of the registration:
Petter Rindforth, Examiner
Dated: May 09, 2015
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