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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Burberry Limited v. Domaincar

Case No. D2006-0196

 

1. The Parties

The Complainant is Burberry Limited, Hong Kong, SAR of China, represented by Cho & Partners, Republic of Korea.

The Respondent is Domaincar, Panama, Panama.

 

2. The Domain Name and Registrar

The disputed domain name <nburberry.com> is registered with DSTR Acquisition VII, LLC d/b/a Dotregistrar.com.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 14, 2006. On February 15, 2006, the Center transmitted by email to DSTR Acquisition VII, LLC d/b/a Dotregistrar.com a request for registrar verification in connection with the domain name at issue. On February 17, 2006, DSTR Acquisition VII, LLC d/b/a Dotregistrar.com 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 March 3, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was March 23, 2006. The Respondent was informed that if its response was not received by that date, it would be considered in default. The Center would still appoint a Panel to review the facts of the dispute and to decide the case. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 27, 2006.

The Center appointed Dr. Vinod K. Agarwal as the sole panelist in this matter on April 11, 2006. 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

From the Complaint and the various annexure to it, the Panel notes the following facts:

Complainant’s activities

In this case, the Complainant is Burberry Limited of Hong Kong, SAR of China. The Complainant submits that it was established in 1856. Burberry is one of the most recognized and respected names in the fashion world. Its quality products are multi-generational and of dual-gender utility. Its trademark BURBERRY is registered in almost 90 countries. Products sold under the trademark include all types of apparel, bags, scarves, cosmetics, perfumes, glasses, watches and other accessories. Burberry sells products in Europe, North America, Japan, Asia and the Middle East with over 230 stores worldwide. The Complainant has stated that its annual revenue for the year ending March 31, 2005, was 715 million pounds (approx. US $ 1.32 billion). In support of its activities the Complainant has sent copies of extracts of Burberry’s websites containing details of its history and corporate overview.

Respondent’s Identity and Activities

The Respondent did not reply to the Complainant’s contentions. Hence, the Respondent’s activities are not known.

 

5. Parties Contentions

A. Complainant

The Complainant contends that each of the three elements specified in Paragraph 4(a) of the Policy are applicable to this dispute.

In relation to element (i), the Complainant contends that amongst the consumers worldwide it is known as BURBERRY. The trademark of the Complainant BURBERRY is registered in many countries, such as, Algeria, Argentina, Australia, Austria, Bahrain, Benelux, Brazil, Canada, Chile, Denmark, European Union, Finland, France, Germany, Greece, Hong Kong, India, Indonesia, Ireland, Italy, Japan, Kenya, Malaysia, Mexico, New Zealand, Norway, Pakistan, Philippines, Portugal, Russian Federation, Saudi Arabia, Singapore, Spain, Sweden, Switzerland, Thailand, Turkey, United Kingdom, United States of America, etc. The said registration is for different items under different classes of goods, such as, non-medicated toilet preparations, perfumes, cosmetics preparations, soaps, anti-perspirants, shaving preparations, articles of luggage, bags, walking sticks, articles of outer clothing, raincoats, etc. It has acquired enormous and valuable goodwill.

The Complainant also operates a web site “www.burberry.com” which is frequently accessed by consumers and general public as well. The Complainant has relied on the decision of ACCOR Sociйtй Anonyme a Deirectoire et conseil de surveillance v. Tigertail Partners,WIPO Case No. D2002-0625, in which it has been held that, “as a rule, when a domain name wholly incorporates a complainant’s mark and only adds a generic word, that is sufficient to establish confusing similarity for the purposes of the Policy. Confusion is only heightened when the generic word added by Respondent is descriptive of complainant’s goods or services marketed in relation to the trademark”. Thus, the domain name <nburberry.com> is very much identical or confusingly similar to the trademark of the Complainant, that is, BURBERRY.

In relation to element (ii), the Complainant contends that the Respondent (as an individual, business, or other organization) has not been commonly known by the domain name <nburberry.com>. Further, the Respondent is not making a legitimate or fair use of the said domain name for offering goods and services. The Respondent is not using the domain name in a manner that can be considered legitimate non-commercial or fair use. The Respondent is intentionally using the subject domain name for commercial gain to misleadingly divert consumers of the complainant and to tarnish the BURBERRY trademark. Further, the website <nburberry.com> serves to provide links to other website, such, as travel, financial planning, real estate, etc. which cannot be said to be fair use. The Respondent is using the BURBERRY mark as a “bait” to attract the general public, who might be seeking Burberry goods, to the Respondent’s site for the purpose of directing the general public to the links within the Respondent’s site.

With regard to element (iii), the Complainant contends that the main object of registering the domain name <nburberry.com> by the Respondent is to earn profit and to mislead the general public and the customers of the Complainant. The Complainant has stated that the use of a domain name that appropriates a well known trademark to promote competing products or to refer to other websites cannot be considered a “bona fide offering of goods and services”. The Complainant has relied on the decision of Parfums Christian Dior S.A. v. Javier Garcia Quintas, Chriatindoir.net, WIPO Case No. D2000-0226.

B. Respondent

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

 

6. Discussion and Findings

Paragraph 15(a) of the Rules instructs this Panel as to the principles the Panel is to use in rendering its decision. It says that, “A panelist 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”.

According to paragraph 4(a) of the Policy, the Complainant must prove that:

(i) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

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

(iii) The domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The present dispute pertains to the domain name <nburberry.com>. The name of the Complainant is Burberry Limited. The trademark of the Complainant is BURBERRY. The said trademark is registered in more than 90 countries. The Complainant has many showrooms in many countries which use the words “Burberry”. In the present case, the Respondent has only added one letter “n” before the trademark of the Complainant. In many cases it has been held that the addition of a generic term to BURBERRY does not eliminate the likelihood of confusion between the domain name and the trademark. In this case only one letter “n” has been added to the domain name whereas in some other cases a complete word was added. Some such cases are

(a) Burberry Limited v. Kim Kyoung-Soon, WIPO Case No. D2005-0768, relating to domain name <burberryplaza.com>;

(b) Burberry Limited v. S.H. Baek, WIPO Case No. D2005-0334, relating to domain name <burberryshop.com>;

(c) Burberry Limited v. Lee Eun Ju, WIPO Case No. D2005-0667, relating to domain name <myburberrys.com>;

(d) Burberry Limited v. Byung-Choon Kim, WIPO Case No. D2005-0704, relating to domain name <itsburberry.com>.

In Estee Lauder Inc. v. estelauder.com, estelauder.net / Jeff Hanna,WIPO Case No. D2000-0869, the panel compared the respondent’s domain name <estelauder.com> with the complainant’s trademark Estee Lauder and came to the conclusion that the absence of “e” was the only difference and concluded that the respondent’s domain name is “confusingly similar to the Complainant’s mark”. Similar conclusions have been made by the administrative panels in the cases of Pharmacia & Upjohn AB v. Dario H. Romero, WIPO Case No. D2000-1273 (“pharmacia” and “pharmaciae”) and Briefing.com Inc. v. Cost Net Domain Name Manager, WIPO Case No. D2001-0970.

Thus, the Panel finds that the domain name is confusingly similar to the registered trademark of the Complainant.

B. Rights or Legitimate Interests

According to Paragraph 4(c) of the Policy, the Respondent may demonstrate its rights to or legitimate interests in the domain name by proving any of the following circumstances:

(i) before any notice to the Respondent of the dispute, the Respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) the Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the Respondent has acquired no trademark or service mark rights; or

(iii) The Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

However, even though given the opportunity, the Respondent has not filed any response in this case.

BURBERRY is the name and mark of the Complainant. The Complainant has not licensed or otherwise permitted the Respondent to use its name or trademark or to apply for or use the domain name incorporating said trademark.

There is no evidence to suggest that the Respondent has become known by the disputed domain name anywhere in the world.

The Panel notes that the disputed domain name which is confusingly similar to the Complainant’s trademark, is used to display sponsored links unrelated to the Complainant’s goods and services.

Based on the record and in the absence of a rebuttal by the Respondent, the Panel infers that the Respondent has no rights or legitimate interests in the disputed domain name. See also Pavillion Agency Inc. Cliff Greenhouse/ Keith Greenhouse v. Greenhouse Agency Ltd. / Glenn Greenhouse, WIPO Case No. D2000-1221.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of the registration or use of the domain name in bad faith:

(i) Circumstances indicating that the Respondent 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

(ii) The Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that it has engaged in a pattern of such conduct; or

(iii) The Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) By using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, internet users to its website 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 the Respondent’s website or location or of a product or service on its website or location.

The Complainant contends that in the present case, Paragraph 4(b)(iv) of the Policy is applicable. The Complainant has furnished evidence of the fact that the disputed domain name <nburberry.com> serves to provide links to other websites offering services unrelated to the Complainant’s goods or services, in the following business areas: travel, financial planning, real estate, etc See The Chip Merchant Inc. v. Blue Star Electronics Inc., d/b/a Memory World, WIPO Case No. D2000-0474 and Yamaha Corporation v. Zhoulei, WIPO Case No. D2004-0126.

In view of the renown and goodwill of the Complainant’s trademark and having regard to the fact that the disputed domain name is being used for baiting Internet users to the Respondent’s website for its financial gain, the Panel concludes that the domain name in dispute was registered and used by the Respondent in bad faith.

 

7. Decision

In light of the forgoing, in accordance with Paragraphs 4(i) of the Policy and Rule 15 of the Rules, the Panel orders that the domain name <nburberry.com> be transferred to the Complainant.


Dr. V. K. Agarwal
Sole Panelist

Dated: April 24, 2006

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2006/d2006-0196.html

 

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