UDRP : OMPI D2003-001 01 09 2003 PRODUITS BERGER C/ RANDAL LAW
WIPO Arbitration and Mediation Center Marque LAMPE BERGER opposée à lampeberger.bz. Transfert du nom de domaine « lampeberger.bz » au profit de la requérante, la société Produits Berger. ADMINISTRATIVE PANEL DECISION Produits Berger v. Randal L. Case No. DBZ2003-0001 1. The Parties The Complainant is Produits Berger, Paris, France, represented by M. Gilles Escudier of Novagraaf France, Levallois Perret, France. The Respondent is Randal L., Hong Kong, SAR of China. 2. The Domain Name and Registrar The disputed domain name (lampeberger.bz) is registered with TierraNet Inc., d/b/a DomainDiscover. 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the « Center ») on April 30, 2003, naming Buydomains.com as Registrar. On May 2, 2003, the Center transmitted by email to RareDomains.com LLC d/b/a BuyDomains.com a request for registrar verification in connection with the disputed domain name. After several reminders from the Center, on May 9, 2003, BuyDomains.com informed the Center that the disputed domain name is registered through TierraNet Inc., d/b/a DomainDiscover. On May 12, 2003, TierraNet Inc., d/b/a DomainDiscover confirmed this and next day transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and giving the contact details of the Respondent held in its database. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on May 15, 2003, naming the correct Registrar. The Center verified that the Complaint as amended 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 May 20, 2002. In accordance with the Rules, paragraph 5(a), the due date for Response was June 9, 2003. Although the Respondent had sent an email to the Center on May 14, 2003, and the Center had sent a copy of the formal notification of the Complaint to the Respondent at the email address from which his communication of May 14, 2003, emanated (as well as to all other known addresses of the Respondent), the Respondent did not submit any Response. Accordingly, the Center notified the parties of the Respondent’s default on June 12, 2003. On June 26, 2003, the Respondent informed the Center that he did not want to argue for this matter any more and asked if he could simply transfer the domain name. On July 7, 2003, the Complainant formally requested suspension of the proceeding and the Center next day suspended the proceeding until August 8, 2003. On August 7, 2003, the Complainant sought the re-institution of the proceeding and the Center acceded to this request on August 11, 2003. The Complainant having sought a three member Panel, the Center appointed Alan L. Limbury, Alain Bensoussan and Yong Li as panelists in this matter on August 19, 2003. The Panel finds that it was properly constituted. Each member of 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. The language of the proceeding is English, being the language of the Registration Agreement. 4. Factual Background (undisputed) The Complainant is the registered proprietor of numerous trademarks in many countries throughout the world comprising the words LAMPE BERGER or LAMPES BERGER either alone or with device, all of which were registered between September 17, 1990, and December 15, 1999. Five such « LAMPE BERGER and device » marks were registered in Hong Kong on November 30, 1999, in classes 1, 3, 5, 11 and 21. The marks are famous in connection with perfumery products, having been used for more than a century. The Respondent registered the disputed domain name on August 9, 2002. It resolves to an « Under Construction » page. The Respondent did not reply to a registered letter from the Complainant dated November 15, 2002, asserting trademark infringement and seeking transfer of the disputed domain name to the Complainant. 5. Parties’ Contentions A. Complainant The disputed domain name is confusingly similar to the Complainant’s trademarks. The Respondent has no rights to or legitimate interests in the disputed domain name. The Complainant has not licensed or otherwise permitted the Respondent to use its trademark nor to apply for registration of the disputed domain name. So far as the Complainant is aware, the Respondent does not own a corresponding trademark and is not commonly known by the words in the disputed domain name. The disputed domain name was registered and should be taken as being used in bad faith. The Complainant’s marks are famous and the Respondent must have known of them when registering the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Failure to file a response A respondent is not obliged to participate in a proceeding under the Policy but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy, WIPO Case No. D2003-0109; SSL International plc v. Mark Freeman, WIPO Case No. D2000-1080 and Alta Vista Company v. Grandtotal Finances Limited et al., WIPO Case No. D2000-0848. A. Identical or Confusingly Similar Many cases have established that « essential » or « virtual » identity is sufficient for the purposes of the Policy: The Stanley Works and Stanley Logistics, Inc. v. Camp Creek Co., Inc., WIPO Case No. D2000-0113, Nokia Corporation v. Nokiagirls.com a.k.a IBCC, WIPO Case No. D2000-0102, and America Online, Inc. v. Anson Chan, WIPO Case No. D2001-0004; Disney Enterprises, Inc. v. John Zuccarini, Cupcake City and Cupcake Patrol, WIPO Case No. D2001-0489; Komatsu Ltd. and Komatsu America International Company v.