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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Diamonique Corporation v. Maison Tropicale S.A.

Case No. D2007-1093

 

1. The Parties

The Complainant is Diamonique Corporation, of West Chester, Pennsylvania, United States of America, represented by Caesar, Rivise, Bernstein, Cohen, & Pokotilow, Ltd., of United States of America.

The Respondent is Maison Tropicale S.A., of British West Indies, Anguilla.

2. The Domain Names and Registrars

The disputed domain names <diamnoique.com> and <diamoniquw.com> are respectively registered with DomainDoorman, LLC and Capitoldomains, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 24, 2007. On July 27, 2007, the Center transmitted by email to DomainDoorman, LLC and Capitoldomains, LLC a request for registrar verification in connection with the domain name(s) at issue. On July 29 2007, DomainDoorman, LLC and Capitoldomains, LLC transmitted by email to the Center their verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient on July 31, 2007, the Complainant filed an amendment to the Complaint on July 31 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 August 6, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 26, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 28 2007.

The Center appointed Simon Minahan as the sole panelist in this matter on September 3, 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.

Owing to the panelist being indisposed, on September 26, 2007, the due date for the decision herein was extended to October 1, 2007.

 

4. Factual Background

There being no response challenging or contradicting the Complainant’s affidavit and other materials, the panel accepts the following as facts:

1. The Complainant and its predecessors in title are the owners of the DIAMONIQUE trademarl which is used in conjunction with costume jewelry. From 1970 to the present, the Complainant’s advertising and sales of jewelry under the trademark DIAMONIQUE have been and are significant. From 1993-2006, QVC, Inc. shipped more than 40 million units of jewelry under the trademark DIAMONIQUE, and has had sales revenues of more than $2.6 billion (USD) in the United States of America alone.

2. The United States Patent and Trademark Office has granted several federal trademark registrations to Complainant for trademark DIAMONIQUE including: Certificate of Registration No. 1,532,950 for the trademark DIAMONIQUE for jewelry with simulated gemstones, namely white and colored simulated gemstones, including simulated diamonds, which issued April 4, 1989; and Certificate of Registration No. 1,538,103 for the trademark DIAMONIQUE for precious stones, namely, colored and white simulated diamonds for use in jewelry other than school class rings, recognition jewelry and sports award jewelry, which issued May 9, 1989. Additionally the Complainant has other registrations comprising the “DIAMONIQUE” mark.

3. Respondent is known and conducts business as, and is an alias and functional equivalent of the following entities:

Caribbean Online International Ltd.; Click Consulting Ltd.; Web Advertising Corp. and Marketing Total S.A.(See Educational Testing Service v. Caribbean Online International Ltd., et al., WIPO Case No. D2007-0500 (“all Respondents should be equated with one domain name holder operating under a variety of aliases”); Sanofi-Aventis and Aventis Inc. v. Web Advertising, Corp., et al., WIPO Case No. D2007-0678; Edmunds.com, Inc. v. Web Advertising, Corp./Keyword Marketing, Inc., WIPO Case No. D2006-1380.)

4. The Respondent and Marketing Total S.A., Web Advertising Corp., Caribbean Online International Ltd. and Click Consulting Ltd. (hereinafter collectively referred to as “Respondent”) have obscured registration details.

5. The Respondent has apparently engaged in a practice known as “domain kiting” and/or “domain tasting,” wherein Respondent takes advantage of the pay-per-click keyword programs of search engines such as Google and ICANN’s 5-day domain name trial period as follows: (a) on any given day, Respondent registers a multitude of domain names that are misspellings of well known trademarks, in order to take advantage of keying errors of Internet users who search for a Website by typing a trademark directly into the address bar of their browser; (b) the Internet user then is taken to a Website which is populated by a search engine’s pay-per-click ads (e.g., Google® Adsense), some of which may seem relevant to the original query; (c) when the Internet user clicks on ad, both the search engine and Respondent earn a fee from the advertiser; and (d) when the 5-day domain name trial period is up, Respondent jettisons domain names that are not generating sufficient traffic to justify the expense of linking them to a parked page.

6. The Respondent has no apparent right or interest in and has not been authorized by the Complainant to use the DIAMONIQUE trademarl or any variant of that mark.

7. The Respondent authored the disputed domain names knowing of the Complainant’s DIAMONIQUE trademarl and seeking to closely mimic it for commercial gain.

5. Parties’ Contentions

A. Complainant

The Complainant’s contentions were relevantly consistent with the matters set out in the factual back ground, above. They otherwise contended that the disputed domain names were liable to transfer under the UDRP, the Complainant having a trademark interest in the DIAMONIQUE mark and the Respondent having none, nor any in the disputed domain names which it had registered and used for illegitimate commercial gain seeking to exploit the Complainant’s goodwill.

B. Respondent

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

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel finds that each of the disputed domain names <diamnoique.com> and <diamoniquw.com> is confusingly similar to the Complainant’s DIAMONIQUE trademarl. They are examples of the all-to familiar typo-squatting domain names which closely follow an establish trademarl but introduce typographical errors to the domain name in order to divert Internet users seeking website involving the trademarled goods or services and are well recognized as being deliberately confusingly similar to the selected trademarl. (See, e.g., Amazon.com, Inc. v. Steven Newman a/k/a Jill Wasserstein a/k/a Pluto Newman, WIPO Case No. D2006-0517 (AMAZOH.COM, QMQZON.COM and SMSZON.COM confusingly similar to AMAZON and AMAZON.COM); Volvo Trademark Holding AB v. Unasi, Inc., WIPO Case No. D2005-0556 (VLOVO.COM confusingly similar to VOLVO).

B. Rights or Legitimate Interests

The Respondent has no apparent rights or legitimate interests in the trademark underlying the domain names nor in the disputed domain names themselves. The Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services pursuant to Policy paragraph 4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy paragraph 4(c)(iii). Instead, Respondent trades on the value of Complainant’s trademark by positioning itself to take advantage of Internet user confusion and mistake. In light of this and in the absence of any contention of an interest, legitimate or otherwise, by the Respondent, the panel finds that the Respondent had no rights or legitimate interest in the domain names in dispute or the DIAMONIQUE trademark which the domain names seeks to exploit.

C. Registered and Used in Bad Faith

The conduct of the Respondent in the present case in deliberately selecting domain names which are confusingly similar to the Complainant’s mark is per force, registration in bad faith See Veuve Clicquot Ponsardin, Maison Fondйe en 1772 v. The Polygenix Group Co. WIPO Case No. D2000-0163.

Similarly, the uses described in the factual background above to which the domain names in dispute have been put are classic examples of bad faith use. In addition the panel finds that:

a) the <diamnoique.com> domain name has also been used to point to sexually oriented websites and that this constitutes a bad faith use of the domain names in the present circumstances (See eg: Bayerische Motoren Werke AG v. RaveClub Berlin, WIPO Case No. D2003-0385); and

b) the <diamnoiquw.com> has been used so that it directs users to site selling competing product to the Complainant’s which in the circumstances is also a bad faith use (See, e.g., Edmunds.com v. Ultimate Search, Inc., WIPO Case No. D2001-1319; Nikon, Inc. and Nikon Corporation v. Technilab, Inc., WIPO Case No. D2000-1774; National City Corporation v. MH Networks LLC, WIPO Case No. D2004-0128).

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 names <diamnoique.com> and <diamnoiquw.com> be transferred to the Complainant.

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Simon Minahan
Sole Panelist

Dated: September 28 2007