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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Davidoff & Cie SA v. Softec Ltd

Case No. D2008-0138

1. The Parties

The Complainant is Davidoff & Cie SA, Geneva, Switzerland, represented by Meisser & Partners, Klosters, Switzerland.

The Respondent is Softec Ltd, DNS Administrator, Grand Cayman, Cayman Islands, Overseas Territory of the Untied Kingdom of Great Britain and Northern Ireland.

2. The Domain Name and Registrar

The disputed domain name <davidoffcigarettes.com> is registered with Name.com LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) by email on January 29, 2008 with hardcopy received on February 7, 2008. The Center transmitted by email to Name.com LLC a request for registrar verification in connection with the domain name at issue. On February 2, 2008, Name.com LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent’s contact details. 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 February 8, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was February 28, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 3, 2008.

The Center appointed Frank Schoneveld as the sole panelist in this matter on March 13, 2008. 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 Complaint includes copies of registration by the Complainant of the trademark DAVIDOFF in the Cayman Islands (from 1997) and evidence of registration of the DAVIDOFF wordmark related to cigarettes in more than 100 other countries as well as international registration with WIPO under the Madrid Agreement (from 1989). These registrations of the trademark DAVIDOFF are for Class 34 of the Nice International Classification of Goods and Services for the Purposes of the Registration of Marks, namely for “Raw or manufactured tobacco, including cigars, cigarillos, cigars with pre-cut ends and cigarettes,[…]”. The Complainant also provides a print out showing registration by the Complainant of the domain names <davidoff-cigarettes.com> until January 17, 2008, and states that Complainant and its licensees are using several domain names such as of <davidoff-cigarettes.com.ua> and <davidoff-cigarettes-club.ru>. As the Respondent does not contest any of this documentation, the Panel accepts the evidence set out in this documentation as fact.

The disputed Domain Name was first created on August 3, 2007.

5. Parties’ Contentions

A. Complainant

The Complainant submits that the domain name is the same as or confusingly similar to its registered trademarks, and that the Respondent has no rights or legitimate interest in respect of the domain name because:

- the trademark DAVIDOFF was registered and therefore known to the Respondent in the Cayman Islands at least since 1997, almost ten years before registration of the domain name by the Respondent,

- the name is internationally famous in regard to cigarettes and smokers articles and in which the Respondent has no apparent interest,

- the Respondent is using the website with the domain name to divert customers to other websites selling various goods/services having no relationship to Complainant or its goods,

- the Respondent is not commonly known by the domain name, has no relation to the Complainant, has no authorization from the Complainant to use the trademark, and has no trademark or legitimate interest in respect of the disputed domain name,

- the Respondent is making no legitimate use of the domain name and is using the domain name only to exploit the goodwill of the Complainant’s registered mark DAVIDOFF to earn money by diverting users of the website to other websites.

The Complainant alleges the Respondent has registered and is using the disputed domain name in bad faith, as shown by the Respondent’s conduct in that:

- the Respondent has prevented the Complainant from reflecting its trademark in the domain name by engaging in a pattern of conduct pursuant to 4(b)(ii) of the Policy as shown by other domain name dispute decisions;

- the Respondent is using the website with the domain name to divert customers to other websites selling various goods/services including those of competitors of the Complainant;

- the Respondent is using the domain name to illicitly exploit the Complainant’s registered trademark, by attracting internet users to different sales websites where he is paid for relevant clicks resulting in significant earnings for the Respondent;

- the Respondent is taking advantage of the likelihood that internet users will confuse the disputed domain name as being affiliated with the Complainant when clearly the Respondent is not affiliated with Complainant.

B. Respondent

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

6. Discussion and Findings

Paragraph 5(e) of the Rules provides that:

“If a Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute based upon the complaint”.

Paragraph 15(a) of the Rules states that:

“A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable”.

Given that no response has been submitted, and there being no exceptional circumstances, the Panel proceeds to decide the dispute based upon the Complaint and the statements and documents submitted by the Complainant.

A. Identical or Confusingly Similar

The registered trademarks of the Complainant are the same as the first word in the disputed domain name - Davidoff. The second word “cigarettes” is one of the main products in the class for which the trademarks of the Complainant are registered. It is also a description of one of the main products for which the trademark is known. Given those circumstances, the Panel finds that the domain name is confusingly similar to a trademark in which the Complainant has rights. Consequently, the terms of paragraph 4(a)(i) of the Policy are satisfied.

B. Rights or Legitimate Interests

The Complainant indicates there is no use of the disputed domain name by the Respondent anywhere, either as a trademark or in any context, other than at the disputed domain name.

The Complainant asserts there is no bona fide use of the website of the domain name, it only showing a search engine and advertising links to other websites that have no relationship to the Complainant or the DAVIDOFF trademark. The Complainant argues that the mere redirection of sponsored links is not a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy paragraph 4(c). In particular, Complainant asserts that by using the term “Davidoff” in the domain name associated with the website, the Respondent was seeking to convey an impression of association with the Complainant’s well known goods, exploiting the goodwill of the Complainant’s trademark. Complainant submits that this is a non-bona fide offering of goods and services.

The Complainant also submits there is no legitimate noncommercial or fair use of the domain name and the use being made is, in effect, illegitimate and unfair.

In the absence of any response to these assertions of the Complainant concerning no other use or registration of the name by the Respondent in any context, either as a trademark, on the internet or otherwise, and no bona fide or legitimate use of the domain name (whether commercial, fair or otherwise), these factors indicate and the Panel finds, that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

C. Registered and Used in Bad Faith

The Respondent has set up the website at the domain name to attract internet users for commercial gain. This is done, according to the Complainant, by earning money through re-routing visitors to the website to other websites in exchange for payment for relevant clicks. The Complainant asserts, and the Respondent does not deny, that the revenues earned by the Respondent based on internet traffic and relevant clicks, must be described as significant since the Respondent exploits, without authorization, a widely known trademark for his own purposes.

The use of the Complainant’s mark in the domain name and at the Respondent’s website creates a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of the website. The confusion arises since anyone visiting the website using the disputed domain name would consider that it was the website not of the Respondent but that of the Complainant or it was sponsored, affiliated or endorsed by the Complainant when clearly it is not.

In view of the above, and in the absence of any response to the Complainant’s assertions, the Panel finds that the Respondent, by using the domain name in this way, has intentionally attempted to attract, for commercial gain, internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website, as set out in paragraph 4(b)(iv) of the Policy.

Pursuant to paragraph 4(b) of the Policy, the Panel therefore finds that there is evidence of registration and use of the domain name in bad faith. In the absence of any response by the Respondent, the Panel accordingly finds that the domain name has been registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy.

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, <davidoffcigarettes.com> be transferred to the Complainant.

Frank Schoneveld
Sole Panelist

Dated: March 31, 2008