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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Rapaport USA, Inc. v. Registrant [230341] Moniker Privacy Services and Registrant [499481] Services LLC

Case No. D2007-0136

 

1. The Parties

The Complainant is Rapaport USA, Inc., Las Vegas, United States of America, represented by Saville Stern, Israel.

The Respondents are Registrant [230341] Moniker Privacy Services, Pompano Beach, United States of America and Registrant [499481] Services LLC, Roseau, Dominica.

2. The Domain Name and Registrar

The disputed domain name <rapapport.com> (herein the domain name in dispute) is registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 31, 2007. On February 2, 2007, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On February 7, Moniker Online Services, LLC transmitted by email to the Center its verification response indicating the registrant as “Registrant [499481] Services LLC” and providing contact details. In response to an email communication from the Center conveying inter alia the registrant and contact details provided by the registrar in its email of February 7, 2007, the Complainant filed an amendment to the Complaint on February 11, 2007. The Center verified that the Complaint together with the amendment to 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 February 14, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 6, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 8, 2007.

The Center appointed J. Nelson Landry as the sole panelist in this matter on March 20, 2007. 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.

On April 3, 2007, the Panel issued a First Procedural Order requesting the Complainant to submit a supplemental statement and evidence to demonstrate and explain how the Complainant is claiming to have rights in a RAPAPORT trademark registered in the name of Martin Rapaport as holder and also to submit evidence showing the annual revenues and expenditures showing that the trademark has been advertised and promoted. The Complainant was given until April 7, 2007, to provide such evidence and the Respondent was given until April 10, 2007, to respond to the supplemental filing and the date for rendering a decision was extended to April 18, 2007.

On April 7, 2007, the Complainant filed a Supplemental Statement and evidence pursuant to the Procedural Order. The Respondent did not file any response or comment.

Initial Whois domain name search enquiries, submitted in evidence, yielded an apparent registrant name of “Moniker Privacy Services” with contact details apparently corresponding to those of the registrar, Moniker Online Services LLC. The registrar, in response to the Center’s verification request, subsequently provided the registrant name of “Services LLC”, with the contact details as set out above.

This suggests use of a privacy service, which the Panel notes have been the subject of some discussion in a number of recent WIPO Panel decisions. See for e.g. TDS Telecommunications Corporation v. Registrant [20758] Nevis Domains and Registrant [117460] Moniker Privacy Services, WIPO Case No. D2006-1620; also WWF-World Wide Fund for Nature aka WWF International v. Moniker Online Services LLC and Gregory Ricks, WIPO Case No. D2006-0975.

Consistent with an approach taken by panels in similar cases, it may be presumed for the purpose of the current proceedings that “Registrant [499481] Services LLC” is an appropriate respondent, but that in the absence of any compelling documentary evidence beyond the Whois to the contrary, it is also appropriate for “Registrant [230341] Moniker Privacy Services” to be included among the named respondents. The Panel has proceeded on this basis and will for convenience refer to a single Respondent.

4. Factual Background

The Complainant, a member of the Rapaport group of companies, is a worldwide provider of added value services to the global diamond industry, and is involved in many aspects of the diamond and jewelry trade globally. It has offices in many locations worldwide including New York, Las Vegas, and eight countries. It trades in networks and it owns and operates “www.diamonds.net” internet portal RapNet – Diamond Trading Network and INDEX – Internet Diamond Exchange.

Commencing in 1977, Martin Rapaport has, over a period of about 15 years, applied for in various countries including the United States and obtained registrations of the RAPAPORT trademark (herein the “Trademark”) in several classes of goods and services, first in association with jewelry, diamonds, precious gemstones, semi-precious gemstones, precious gems semi-precious gems and watches and then in numerous other classes including providing guide books and directories, magazines and newsletters, retail and wholesale store services, online computer database featuring trade information in the field of jewelry and abovementioned goods, online trading services in which seller posts products to be auctioned and bidding is done via the internet, brokerage services in the field of jewelry, computer bulletin boards and chat rooms, namely, providing online facilities for interaction among computer users, news agency services, gathering and dissemination of news and market reports relating to jewelry, newsletters in the field of the same goods including diamonds and jewelry (herein the “goods and services”).

The Complainant was incorporated by Martin Rapaport on September 25, 1995. Martin Rapaport is the designated president, secretary and director of the Complainant along with Rivka Rapaport as treasurer. The Complainant states that since its inception it has been licensed by Martin Rapaport to use the Trademark in association with the products and services mentioned in the Trademark registrations.

The Complainant has established an Internet website which can be reached through domain names <rapaport.com> and <rapaport.net>. The domain name in dispute also accesses the Complainant’s “www.diamonds.net” website.

The Respondent appears to have no connection or affiliation with the Complainant and has apparently not received any license or consent express or implied to use the Complainant’s Trademark.

 

5. Parties’ Contentions

A. Complainant

The Complainant represents that it has spent substantial time, effort and money advertising and promoting the RAPAPORT Trademark throughout the United States and the world and, that as a result thereof, the Trademark became world famous and the Complainant developed an enormous amount of goodwill in the Trademark.

The Complainant further represents that its websites allow internet users to access information regarding the Complainant and its products and to use and enjoy the Internet services provided by the Complainant.

The Complainant alleges that the domain name in dispute which is a misspelling of the RAPAPORT Trademark is virtually identical to the said Trademark, the only difference being an extra “p” and is confusingly similar and likely to cause confusion among Complainant’s customers and take advantage of Internet users who do not know the correct spelling.

The Complainant further alleges that the Respondents have no connection or affiliation with Complainant and have not received any license or consent express or implied to use the RAPAPORT Trademark and neither has any legitimate interest in the domain name in dispute.

According to the Complainant, there is no non-commercial or fair use of the domain name in dispute by the Respondents which currently enjoy income from trading on the back of Complainant’s good name and reputation.

The Complainant submits that the Respondent was most likely aware of the fame of the RAPAPORT Trademark when it registered the domain name in dispute since Complainant’s Trademark was internationally known in the diamond and jewelry industry.

The Complainant further submits that the Respondent registered the domain name in dispute to increase the traffic to its website by wrongfully capitalizing on Complainant’s well-known Trademark, to intentionally attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s Trademark as to the source, sponsorship affiliation or endorsement. Furthermore bad faith use is present when one considers Respondent’s website which is characterized in a prominent position of its homepage as being intended “for resources and information on Diamond prices and Wholesale diamond” and refers to the links on the homepage to Complainant’s range of products and services while none of these links point to Complainant’s legitimate and official website “www.rapaport.com”.

Finally the Complainant claims that Respondents have sequentially and intentionally been diverting customers through the use of the domain name in dispute which contains a common typo which Complainant’s customers might enter by mistake.

B. Respondent

The Respondents did not reply to the Complainant’s contentions and evidence in the Complaint and in the Supplemental Statement.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy requires that the Complainant prove each of the following three elements in order for a domain name to be cancelled or transferred:

(i) The domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights, and

(ii) The respondent has no rights or legitimate interest 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 Complainant has established that it has, since its inception in September 1995, as a licensee, continuously and substantially used the Trademark in the United Sates and in numerous countries of the world always in association with goods and services related to various aspects of the diamond and jewelry business. While there is no specific statement of control of the use of the Trademark by the owner Martin Rapaport, the documentary evidence in the case indicates control by Martin Rapaport of the use of the Trademark, in that the Complainant along with other companies of the group are wholly-owned companies of Martin Rapaport, that all copyright notices are in the name of Martin Rapaport and the various references to the companies and their respective addresses and that of Martin Rapaport along with other circumstantial evidence showing a very close relationship between the Trademark owner and its licensee, the Complainant. The Panel finds that the Complainant, as licensee, has rights in the Trademark.

The only difference between the Trademark and the domain name in dispute is that the latter has only one additional p before “port”. This modification does not diminish in any way the confusing or almost identical character of the domain name in dispute with the Trademark. Although the Complainant did not cite any earlier decisions, this Panel is aware of many decisions of UDRP panels in which it has been held that such difference should be disregarded.

The Panel finds that the domain name in dispute is confusingly similar to the Complainant’s Trademark and that the first criterion of the Policy has been met.

B. Rights or Legitimate Interests

The Respondent has not filed any response or evidence in this proceeding. Therefore the Panel may accept all statements of facts, reasonable inferences and allegations included in the Complaint as true. The Complainant has made a prima facie case that the Respondent lacks rights or legitimate interests in the domain name in dispute by stating that the Respondents have never been known by the name “Rapapport” or the domain name in dispute and that the activities of the Respondent are not legitimate non-commercial or fair use of the domain name in dispute.

Furthermore, the Complainant states that it has never given a license nor in any way authorized the Respondent to make use of Complainant’s Trademark. There is no evidence before the Panel that the Respondent has ever engaged is any legitimate business under the Complainant’s Trademark. While the Complainant has registered a domain name corresponding to its Trademark, namely “rapaport.com”, the evidence before the Panel shows that on the Respondent’s webpage under the domain name in dispute, they, during their respective period of ownership, represent prominently themselves as providing resources and information on diamond prices and refer to the links on the homepage of Complainants range of products and services the Complainant such as “Rapaport diamond price sheet” when none of these links point to Complainant’s official website “www.rapaport.com”.

Considering the evidence which has not been rebutted, the domain name in dispute gives every appearance of being used to trade-off the goodwill of the Trademark for commercial gain in that Internet users visiting the address of the domain name in dispute are diverted to competitive diamond operations which in all likelihood generates financial benefits for the Respondent. The Panel finds that such Respondent’s activities do not in the circumstances constitute legitimate non commercial fair use or bona fide offering of goods and services. See e.g. Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com”, WIPO Case No. D2000-0847.

The Panel find that the second criterion of the Policy has been met.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy states circumstances which, if found, shall be evidence of the registration and use of the domain name in bad faith:

(i) circumstances indicating that you have registered or you have 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 the Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you have 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 you have engaged in a pattern of such conduct; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.

It should be noted that the circumstances of bad faith are not limited to the above.

The Complainant contends that the domain name in dispute was registered and used in bad faith.

It is clear to this Panel upon considering the single letter “p” difference in the domain name in dispute and the Trademark and its goodwill, both in the same field of diamonds and jewelry, that the Respondent was in all likelihood aware of the existence of the Trademark of the Complainant at the time it registered the domain name in dispute. The alternative would in this Panel’s view be too much of a coincidence. As held by the panel in PepsiCo, Inc. v. “null”, aka Alexander Zhavoronkov, WIPO Case No. D2002-0562, this alone may constitute registration in bad faith.

Furthermore, as contemplated in paragraph 4(b) (iv) of the Policy, the registration of a domain name confusingly similar established that the activities of the Respondent was apparently devised so as to attract, for commercial gain, Internet users to a website by creating and exploiting a likelihood of confusion with the Complainant’s Trademark as to the source, sponsorship, affiliation or endorsement of the website. The Panel considers that this constitutes bad faith use of the domain name in dispute. The Panel has visited both websites at “www.rapaport.com” of the Complainant and at “www.rapapport.com” of the Respondent and has readily noted the type of information available on the Complainant’s website and the reference to other sources of diamond businesses at the Respondent’s website, clearly showing how the Internet visitor arriving at the Respondent’s site is deviated to other diamonds sources with specific mention of lower prices than at Complainant Rapaport business site.

The Panel finds that the Respondent has registered and used the domain name in dispute in bad faith.

The Panel finds that the third criterion of the Policy has been met.

7. Decision

The Panel concludes that:

(a) the domain name <rapapport.com> is confusingly similar to the Complainant’s Trademark;

(b) the Respondents has no rights or legitimate interest in the domain name in dispute;

(c) the domain name in dispute has been registered and is being used in bad faith.

Therefore, in accordance with Paragraphs 4(a) and 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <rapapport.com> be transferred to the Complainant.


J. Nelson Landry
Sole Panelist

Dated: April 14, 2007

 

Источник информации: https://www.internet-law.ru/intlaw/udrp/2007/d2007-0136.html

 

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