The Complainant is Pierre Balmain S.A., Paris, France, represented by Bettinger Schneider Schramm Patent- und Rechtsanwälte, Munich, Germany.
The Respondent is Brian Lola, Dublin, Ireland.
2. The Domain Name and Registrar
The disputed domain name <balmainhair.com> (the “Domain Name”)
is registered with ABR Products Inc. dba Nitin Networks.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 12, 2006 by email and on December 18, 2006 in hardcopy. On December 14, 2006, the Center transmitted by email to ABR Products Inc. dba Nitin Networks a request for registrar verification in connection with the domain name at issue. On December 14, 2006, ABR Products Inc. dba Nitin Networks transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. 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 December 19, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was January 8, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 19, 2007.
The Center appointed Tobias Zuberbühler as the sole
panelist in this matter on January 24, 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.
4. Factual Background
The Complainant is a French haute couture house. It was established in 1945, by Pierre Balmain. Today it sells luxury products in over 108 countries. It distributes watches, perfumes, jewelry and eyewear. Additionally, it sells hair extensions under the domain name <balmainextensions.com>. The Complainant proved ownership of the trademark BALMAIN. This trademark was registered on October 9, 2000, inter alia for the classes 22 and 26 (hair and wigs).
The Respondent registered the Domain Name on August
1, 2005.
5. Parties’ Contentions
A. Complainant
The Complainant objects to the use of the Domain Name by the Respondent and bases its Complaint on the following grounds:
1. The Domain Name is confusingly similar to the Complainant’s trademark.
2. The Respondent has no rights or legitimate interests in respect of the Domain Name as there is no relationship between the Respondent and the Complainant. Therefore, the Respondent has neither permission nor license to use Complainant’s trademark. There is no evidence of use of the Domain Name in connection with a bona fide offering of goods or services nor is the Respondent commonly known by the Domain Name. The Respondent makes no legitimate non-commercial or fair use of the Domain Name.
3. The Respondent does not conduct any legitimate commercial or non-commercial business activity. The Respondent registered and uses the Domain Name with the only purpose to divert customers to the website of “Racoon International”, a competitor of the Complainant. Therefore, the Domain Name was registered and is being used in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g. paragraph 2(a) of the Rules). In this case, the Panel finds that the Center complied with all formalities and that the Complaint was properly notified to the Respondent.
Paragraph 4(a) of the Policy sets forth three elements that must be established by the Complainant to merit a finding that the Respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:
(i) the Respondent’s domain name 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 interests in respect of the domain name; and
(iii) the Respondent’s domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Domain Name incorporates Complainant’s trademark in its entirety.
It also contains the generic word “Hair”. Such a generic word has
limited ability to distinguish the Domain Name from Complainant’s trademark,
especially given the Complainant’s hair extension business here. It is
the consensus view of the WIPO panelists that such a combination of a trademark
and a generic word cannot sufficiently avoid the likelihood of confusion between
the trademark and the Domain Name regarding the test of confusing similarity
(inter alia Pfizer Inc. v. Jeff Ferris, WIPO
Case No. D2006-1242). Thus, the Complainant meets the requirements of paragraph
4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Respondent was not given any rights to use the Complainant’s trademark. The Respondent diverts consumers to the website of “Racoon International” which offers similar products as the Complainant, with apparent intent of commercial gain. The Panel cannot recognize any bona fide offering of goods or legitimate noncommercial or fair use of the Domain Name in such behavior.
Moreover, the Respondent failed to demonstrate any other legitimate rights to or interests in the Domain Name. Therefore, the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
By creating a likelihood of confusion between the Domain Name and the Complainant’s
trademark the Respondent attempts the attract Internet users to Respondent’s
website “Racoon International”. As this website must be considered
as a competitor of the Complainant this diversion of consumers with obvious
intent for commercial gain clearly indicates bad faith in registration and use
of the Domain Name according to paragraph 4(c)(iv) 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 <balmainhair.com> be transferred to the Complainant.
Tobias Zuberbühler
Sole Panelist
Dated: February 7, 2007
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