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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Prada S.A. v. Danielle Terraglia

Case No. D2004-0870

 

1. The Parties

The Complainant is Prada S.A., Lugano, Switzerland, represented by Studio Legale Jacobacci e Associati, Italy.

The Respondent is Danielle Terraglia, Pluckemin, New Jersey, United States of America.

 

2. The Domain Name and Registrar

The disputed domain name <lunarossaonline.com> is registered with Melbourne IT trading as Internet Name Worldwide.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 21, 2004. On October 22, 2004, the Center transmitted by email to Melbourne IT trading as Internet Name Worldwide a request for registrar verification in connection with the domain name at issue. On October 26, 2004, Melbourne IT trading as Internet Name Worldwide transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, Paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 28, 2004. In accordance with the Rules, Paragraph 5(a), the due date for Response was November 17, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 18, 2004.

The Center appointed Stйphane Lemarchand as the Sole Panelist in this matter on November 29, 2004. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, Paragraph 7.

 

4. Factual Background

The Complainant is an internationally well-known company in the field of fashion.

The Complainant participated in the Vuitton Cup and won it in 2000 with a boat known as LUNA ROSSA, which was also a participant in subsequent editions of the same competition.

The trademark LUNA ROSSA registered by the Complainant has been largely used for many years throughout the world.

The Complainant is notably the owner of the following registrations:

Italian trademark No. 852563 LUNA ROSSA registered on July 22, 1998;

Italian trademark application No. T02001C000591 filed on February 16, 2001;

Community trademark No. 1158591 registered on February 22, 2001;

US trademark No. 726938 registered on June 13, 2003.

The Respondent registered on August 8, 2003, the domain name <lunarossaonline.com>.

 

5. Parties’ Contentions

A. Complainant

The Complainant is a well-known company in the field of fashion.

The domain name <lunarossaonline.com> is confusingly similar to the trademark LUNA ROSSA.

The Respondent is located in the US, where the Vuitton Cup and the America’s Cup were held and widely covered by the media. As a result of this, the boat LUNA ROSSA became famous.

The Respondent is located in the US where the Complainant has one of its most significant markets for fashion products.

The Respondent could not have been unaware of the famous trademark LUNA ROSSA, the registration could only have occurred in bad faith.

Respondent has no rights or legitimate interests in respect of the domain name.

<lunarossaonline.com> only resolves in a parking/under construction page.

The domain name is used in bad faith since passive holding can be construed as use in bad faith.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs the Panel as to the principles the 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 seems applicable”.

Paragraph 4(a) of the Policy states that, for a complaint to be granted, the Complainant must prove each of the following:

(i) that the domain name registered by the Respondent is identical or confusingly similar to the trademarks or service marks in which the Complainant has rights; and

(ii) that the Respondent has no rights or no legitimate interests in respect of the domain name; and

(iii) that the domain name has been registered and is used in bad faith.

A. Identical or Confusingly Similar

The disputed domain name <lunarossaonline.com> is made up of the Complainant’s trademark with the addition of the word “online” which does not affect the attractive power of the distinctive word “lunarossa”.

The addition of the suffix “online” strengthens the risk of confusion insofar as the consumer may think that it constitutes a variation of the trademark LUNA ROSSA owned by the Complainant.

Consequently, the Panel finds that the disputed domain name is confusingly similar to the registered trademark LUNA ROSSA.

B. Rights or Legitimate Interests

The Registrant of the disputed Domain Name has not filed any Response to the Complaint and thus has not alleged any facts or elements to justify prior rights or legitimate interests in the said domain name.

The Complainant does not appear to have licensed or otherwise authorized the Respondent to use its trademark or any Domain Name incorporating the trademark.

Therefore, prior to any notice of this dispute, the Respondent had not used the domain name in connection with any bona fide offering of goods or services within the meaning of Paragraph 4(c)(i) of the Policy.

By not submitting a Response, the Respondent has failed to demonstrate that he has rights or legitimate interests in the Domain Name.

Thus, the Panel concludes that the Respondent has no rights or legitimate interests, within the meaning of Paragraph 4(a)(ii) and (c)(i-iii) of the Policy in respect of the disputed Domain Name.

C. Registered and Used in Bad Faith

The Policy, Paragraph 4(b), indicates that certain circumstances may, “in particular but without limitation”, be evidence of bad faith.

In the present case, the bad faith of the Respondent may be established by the following elements:

- The Complainant’s trademark is not only distinctive but also largely used in the US where the Respondent is located. It is obvious that the trademark LUNA ROSSA has been known from the public since the Vuitton Cup and in becoming the official challenger for the America’s cup. These events were and are reported on by American media and an official website is dedicated to LUNA ROSSA, “www.pradalunarossa.com”. Thus the Respondent who is located in the US could not ignore the existence of this trademark at the time of registering the domain name <lunarossaonline.com> and could not ignore that Prada is the sponsor of the yacht LUNA ROSSA (see Sony Kabushiki Kaisha also trading as Sony Corporation v. Sin, Eonmok, WIPO Case No D2000-1007).

- The Registrant has not alleged any facts or elements to justify prior rights or legitimate interests in the said domain name. She has failed to provide any legitimate reason for registering the domain name.

- The Respondent has never used the disputed domain name since it leads to a web page under construction. The absence of development of any website using the domain name in dispute or the absence of any other good faith use of the domain name are elements of the bad faith of the Respondent. Indeed, according to previous decisions, the notion of “use in bad faith” must not be limited to positive actions and the passive holding in relation to a domain name can constitute also another ground of use of a domain name in bad faith (see Telstra Corporation Limited v. Nuclear Marsmallows, WIPO Case No D2000-0003 and eBay Inc v. Sunho Hong, WIPO Case D2000-1633).

Thus, the Panel concludes that the disputed domain name was registered and is being used in bad faith.

 

7. Decision

For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <lunarossaonline.com> be transferred to the Complainant


Stйphane Lemarchand
Sole Panelist

Dated: December 10, 2004

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2004/d2004-0870.html

 

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