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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Gaulme SA & Jean-Paul Gaultier SA v. Uniq Web Media Ltd

Case No. D2000-0821

 

1. The Parties

The Complainant in this administrative proceeding are Gaulme SA and

 

Jean-Paul Gaultier SA, located at 30, rue du Faubourg Saint Antoine, 75012 Paris, France, represented by Jean-Marie Moiroux, Attorney, with offices at 3, rue de Logelbach, 75017 Paris, France, hereinafter the "Complainant".

Respondent is Uniq Web Media Ltd., located at 139 Fulton Street, Suite 508, New York, NY 10038, United States, hereinafter the "Respondent".

 

2. Domain Name and Registrar

The domain name at issue is "gaultier.com", registered on March 8, 1999, hereinafter referred to as the "Domain Name". The registrar is Network Solutions.

 

3. Procedural History

The WIPO Arbitration and Mediation Center (the Center) received the Complainant’s complaint on July 19, 2000 (electronic version) and July 24, 2000 (hard copy). The Center verified that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the Policy), the Rules for Uniform Domain Name Dispute Resolution Policy (the Rules), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules). Complainant made the required payment to the Center. The formal date of the commencement of this administrative proceeding is July 30, 2000.

On July 22, 2000, the Center transmitted via email to Network Solutions a request for registrar verification in connection with this case. On July 26, 2000, Network Solutions transmitted via email to the Center its verification response, confirming that the registrant is Uniq Web Media Ltd. and that the administrative, technical and billing contact is Choi, Kenneth, Inova Research Group.

Having verified that the complaint satisfied the formal requirements of the Policy and the Rules, the Center transmitted on July 30, 2000, to the Respondent and to Network Solutions, Notification of Complaint and Commencement of the Administrative Proceeding, via post/courier, fax and e-mail, in accordance with the following contact details:

Uniq Web Media Ltd.
139 Fulton Street
Suite 508
New York, NY 10038
USA

Fax: +1 (212) 587-8559
Email: kc@who.net
Postmaster@gaultier.com

Certain, Newman & Monopoli
139 Fulton Street
Suite 504
New York, NY 10038
USA

Fax: +1 (212) 732-2508

It seems that the latter are counsel of Respondent.

The Center advised that the response was due by August 18, 2000. However, no response was submitted and consequently, the Center issued a Notification of Respondent Default on August 22, 2000.

In view of the Complainant’s designation of a single panelist, the Center invited Mr. Geert Glas to serve as a panelist.

Having received Mr. Geert Glas’ Statement of Acceptance and Declaration of Impartiality and Independence, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Geert Glas was formally appointed as the Sole Panelist, on September 18, 2000. The Sole Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Rules and Supplemental Rules.

The Administrative Panel shall issue its Decision based on the complaint, the evidence presented, the Policy, the Rules and the Supplemental Rules.

 

4. Factual Background

GAULME SA is the owner of numerous trademark registrations in various countries for the trademarks "GAULTIER", "JEAN-PAUL GAULTIER" and "JPG". Copies of those trademark registrations are attached to the complaint. These are:

the French word mark n° 1 371 978, filed on September 25, 1986, for the word "GAULTIER" and for the goods and services of the classes 9, 16, 15, 38, 41, 42;

the international word mark n° 510 858, registered on March 24, 1987, for the word "GAULTIER" and for goods and services of the classes 9, 15, 16, 38, 41, 42;

the French word mark n° 1 641 732, filed on July 20, 1989, for the words

"JEAN-PAUL GAULTIER" and for the goods and services of the classes 3, 5, 8, 9, 11, 14, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 38, 41, 42;

the international word mark n° 605 921, registered on August 31, 1993 for the words "JEAN-PAUL GAULTIER" and for goods and services of the classes 9, 28, 38;

the French figurative trademark n° 1 703 307, filed on November 4, 1991, for the logo "JEAN-PAUL GAULTIER" and for the goods and services of the classes 3, 5, 8, 9, 11, 14, 15, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 38, 41, 42;

the international figurative trademark n° 510 859, registered on March 24, 1987, for the logo "JEAN-PAUL GAULTIER" and for goods and services of the classes 8, 11, 14, 15, 18, 20, 21, 22, 23, 24, 26, 27, 28, 34, 38, 41;

the French figurative trademark n° 1 668 583 for the logo "JPG" and for the goods and services of the classes 3, 9, 14, 18, 25;

the international figurative trademark n° 629 834, registered on January 2, 1995, for the logo "JPG" and for goods and services of the classes 3, 9, 14, 18, 25.

It appears from a license agreement that these trademarks are operated by

JEAN-PAUL GAULTIER SA, as exclusive licensee of GAULME SA.

It also appears that Complainant has registered various domain names incorporating the names "gaultier" and "jean paul gaultier". These are:

"jpgaultierparfums.com"

"jpgaultierparfums.tm.fr"

"jeanpaulgaultier.tm.fr"

"Galeriegaultier.tm.fr"

"Galeriegaultier.com"

"Gallerygaultier.com"

"Gaultierland.com"

"Gaultierland.tm.fr"

"Gaultier.net"

"Gaultier.org"

"Gaultierparfums.com"

"Gaultierparfums.tm.fr"

"Jeanpaulgaultier.net"

"Jeanpaulgaultier.org"

JEAN-PAUL GAULTIER SA distributes, directly or indirectly, the well-known luxury products created by Mr. Jean-Paul GAULTIER (i.e. clothes, leather products, perfumes…).

It appears from a bailiff’s report that Respondent created a web site connected to the Domain Name. This web site contained, among others, a public bulletin board stating that it is a public message board giving people the possibility to send messages to

Mr. Jean-Paul Gaultier. In addition, the web site reproduces some trademarks and designs of Mr. Jean-Paul Gaultier and/or Complainant and claims to sell goods under Complainant’s trademarks through the Internet. The web site also contained hyperlinks to other web sites selling goods primarily distributed by JEAN PAUL GAULTIER SA and bearing the trademarks "GAULTIER", "JEAN-PAUL GAULTIER" or "JPG". Finally, the web site contained a link to the official web site of JEAN-PAUL GAULTIER SA (http://www.jpgaultier.fr).

It seems however that this web page has been taken down in the meanwhile. Indeed, notwithstanding several attempts, the Panel was not able to access it.

Complainant’s counsel sent a first warning letter on August 8, 1999 to Respondent, without success.

It appears from the Complaint that Complainant tried to find an agreement with Respondent in order to obtain the transfer of the Domain Name, but that no arrangement could be made due to Respondent’s request to obtain approximately USD 30.000 in exchange of the transfer of the Domain Name registration. This point is however not supported by any evidence in the file.

It appears from Network Solutions’ WHOIS records that the Domain Name jpgaultier.com, which is the subject matter of WIPO case number D2000-0820, has been registered by a registrant with the very same address as Respondent, namely 139 Fulton Street, Suite 508, New York, NY 10038, United States, and that the administrative, technical and billing contact is the very same person, namely Choi Kenneth.

There is no relation between Respondent and Complainant, and Respondent is not a licensee of Complainant, nor has Respondent otherwise obtained an authorization to use Complainant’s trademarks.

 

5. Parties Contentions

Complainant

Complainant contends that Respondent registered the Domain Name without the consent of Mr. Jean-Paul GAULTIER and/or GAULME SA and/or JEAN-PAUL GAULTIER SA. In addition, Respondent registered the Domain Name to sell it to Complainant for valuable consideration in excess of his out-of- pocket costs directly related to the Domain Name, to create customer confusion and to intentionally attempt to attract, for commercial gain, Internet users to his web site.

Consequently, Complainant requires the transfer of the Domain Name registration.

By e-mail of October 16, 2000, Complainant indicated GAULME SA as the desired transferee.

Respondent

No response has been submitted.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Administrative Panel as to the principles the Administrative Panel is to use in determining the dispute: "A Panel shall 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 directs that the Complainant must prove each of the following:

(1) that the Domain Name registered by the Respondent is identical to the trademark in which the Complainant has right; and,

(2) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and,

(3) that the Domain Name has been registered and is being used in bad faith.

a. Identity

The Domain Name is "gaultier.com".

"GAULTIER" is a registered trademark of Complainant.

In view of the above, the Administrative Panel finds that the Domain Name is identical to the trademark of Complainant.

b. Rights or Legitimate Interests

Complainant has not licensed or otherwise permitted Respondent to use any of its trademarks or to apply for any domain name consisting of any of those marks.

By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to paragraph 4c of the Policy, any rights or legitimate interests in the Domain Name.

The Administrative Panel therefore finds that Respondent has no legitimate right or interest in the Domain Name.

c. Registration and Use in Bad Faith

Several facts have to be taken into consideration when assessing the absence/presence of bad faith in this matter:

"GAULTIER" is a registered trademark of Complainant.

Respondent knew of Complainant and its trademarks when he registered the Domain Name.

The Domain Name does not resolve to any web page right now. However, in view of the evidence submitted by Complainant, it is obvious that it was connected to a web page displaying Complainant’s trademarks, offering to sell products under Complainant’s brand and making customers believe that they could send messages to the real Mr. Jean-Paul Gaultier.

The Domain Name has the very same registration address and the very same administrative, technical and billing contact as for the Domain Name jpgaultier.com.

Respondent did not submit any response.

In view of the elements and of the facts as described above, it is the Panel’s opinion that Respondent registered the Domain Name primarily for the purpose of disrupting the business of Complainant and that Respondent has, by using the Domain Name, intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.

This bad faith is best illustrated by the fact that Respondent’s web site falsely offered to the public the possibility to send e-mail messages to Mr. Jean-Paul Gaultier. By adding this feature to its web site and thereby falsely creating the impression of being officially linked to Mr. Gaultier, Respondent knowingly misled the public.

Moreover, when registering the Domain Name, Respondent knowingly chose a name which is identical to the trademark of Complainant, thereby intentionally creating a situation which is at odds with the legal rights and obligations of the parties.

By not submitting a response, Respondent has failed to invoke any circumstances which could demonstrate that it did neither register, nor use the Domain Name in bad faith.

In conclusion and in view of the above, it is the Panel’s opinion that Respondent registered and used the Domain Name in bad faith.

 

7. Decision

In light of the foregoing, the Administrative Panel decides that the Domain Name "gaultier.com" registered by Respondent is identical to the trademark of Complainant, that Respondent has no right or legitimate interest in respect of the Domain Name, and that Respondent registered and used the Domain Name in bad faith.

Accordingly, pursuant to Paragraph 4, i of the Policy, the Administrative Panel requires that the registration of the Domain Name "gaultier.com" be transferred to GAULME SA.

 


 

Geert Glas
Sole Panelist

Dated: October 24, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0821.html

 

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