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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

NA PALI S.A.S. v. DILLC DomainAdmin

Case No. D2008-0517

1. The Parties

The Complainant is NA PALI S.A.S. of Saint Jean de Luz, France.

The Respondent is DILLC DomainAdmin of Boca Raton, Florida, United States of America.

2. The Domain Name and Registrar

The disputed domain name <roxy-store.com> (the “Domain Name”) is registered with Moniker Online Services, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) in hard copy on April 3, 2008. The Center transmitted its request for registrar verification to the Registrar by email on April 4, 2008. The Registrar replied by email on April 5, 2008, confirming that it had received a copy of the Complaint, that the Domain Name was registered with it, that the Respondent was the current registrant of the Domain Name, that the Uniform Domain Name Dispute Resolution Policy (the “Policy”) applied to the Domain Name, that the Domain Name was locked, that the registration agreement was in English and that the Respondent had submitted in that agreement to the jurisdiction at the location of the Registrar’s principal office for court adjudication of disputes concerning or arising from the use of the Domain Name. The Registrar also provided the contact details on its Whois database in respect of the Domain Name.

The Center verified that the Complaint satisfied the formal requirements of 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 11, 2008. Confirmation of delivery of the notification to the postal and email addresses on the Registrar’s Whois database was received by the Center. In accordance with paragraph 5(a) of the Rules, the due date for Response was May 1, 2008. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 6, 2008.

The Center appointed Jonathan Turner as the sole panelist in this matter on May 22, 2008. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules. Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.

4. Factual Background

The Complainant distributes and markets products, particularly clothes, under the marks “ROXY” and “QUIKSILVER”. The Complainant has registered ROXY and various logos and device marks containing the word “roxy” as trademarks for various products, including items of clothing, in France. It has also applied to register ROXY as a trademark at the Office for Harmonisation in the Internal Market of the European Union (“OHIM”), but these applications are still pending.

The Complainant registered the domain name <quicksilver-store.com> on September 7, 2007, and has operated a website at “www.quiksilver-store.com” for online sale of its “QUIKSILVER” branded products since September 20, 2007.

The Respondent registered the Domain Name on October 31, 2007, and has used it for a website containing links which use “roxy” as keywords. The Respondent owns more than 30,000 domain names.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is confusingly similar to its registered trademark ROXY and that Internet users would assume that it relates to an official website from which they can purchase ROXY clothes directly from the Complainant.

The Complainant maintains that the Respondent has no rights or legitimate interests in respect of the Domain Name. It points out that the Respondent has not been commonly known under the name “ROXY” and has not acquired any identical or similar trademark. Nor has it offered any goods or services under this mark other than those offered by the Complainant. The Complainant asserts that the only interest of the Respondent is to receive payments from misleadingly diverting consumers through the links on its website using the Domain Name.

The Complainant further submits that the Respondent registered and is using the Domain Name in bad faith. The Complainant points out that the Respondent registered the Domain Name some 40 days after it established its website at “www.quiksilver-store.com” and that the Respondent has therefore profited from the creation of the Respondent’s website to attract, for commercial gain, Internet users looking for the official “Roxy” website. The Complainant also draws attention to the Respondent’s registration of numerous other domain names and suggests that it is very likely that the Respondent’s intention was to sell the Domain Name to the Complainant in the hope that the Complainant would need it to develop a “Roxy” website corresponding to its “Quiksilver” website.

B. Respondent

As stated above, the Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. Each of these requirements will be considered in turn below.

In accordance with paragraph 14(b) of the Rules the Panel shall draw such inferences from the Respondent’s default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.

A. Identical or Confusingly Similar

It is clear that the Complainant has registered rights in the trademark ROXY.

The Panel considers that the Domain Name is confusingly similar to this mark. The addition of the descriptive word “store” linked with the mark by a hyphen does not distinguish the Domain Name from the mark. On the contrary, many Internet users would assume that the Domain Name refers to an online store through which genuine goods bearing the ROXY mark can be purchased.

The first requirement of the Policy is satisfied.

B. Rights or Legitimate Interests

The Complainant has not exhibited printouts of the Respondent’s website or described it in any detail, and it is no longer accessible. However, the Respondent has not disputed the Complainant’s allegation that its website is such as to misleadingly divert Internet users through the links provided on it. The Panel has no reason to doubt the Complainant’s allegation on this point and therefore accepts it in view of the Respondent’s default under paragraph 14(b) of the Rules.

It is well established that a respondent cannot claim rights or legitimate interests within the meaning of paragraph 4(a)(ii) of the Policy on the basis of a use of the disputed domain name which has been such as to mislead Internet users, even where the use has been in relation to genuine products bearing the complainant’s mark (as appears from the Complaint to have been the position here): See Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903.

It is also clear that the Respondent is not commonly known by the Domain Name or a corresponding name. There appears to be no other basis on which the Respondent could claim rights or legitimate interests in respect of the Domain Name.

The Panel concludes that the second requirement of the Policy is satisfied.

C. Registered and Used in Bad Faith

As noted above, the Respondent has not disputed the Complainant’s allegation that its website is such as to misleadingly divert Internet users through the links provided on it. Nor has the Respondent disputed the Complainant’s further allegations that the Respondent obtains payments from the diversion of Internet users through these links, and that it registered the Domain Name in the expectation that the Complainant would need to develop a website using the Domain Name, corresponding to its recently developed website at “www.quiksilver.com”, and that it would therefore wish to buy the Domain Name from the Respondent.

In these circumstances, the circumstances identified in paragraphs 4(b)(i) and 4(b)(iv) of the Policy have been established by the Complainant’s unchallenged evidence. These circumstances constitute evidence of registration and use of the Domain Name in bad faith. There is nothing in the file which dispels this inference.

Accordingly, the Panel concludes that the Domain Name was registered and is being used in bad faith, and that the third requirement of the Policy is satisfied.

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, <roxy-store.com>, be transferred to the Complainant.

Jonathan Turner
Sole Panelist

Dated: June 4, 2008