Diamonique Corporation v. Digi Real Estate Foundation
Case No. D2007-1088
1. The Parties
The Complainant is Diamonique Corporation, West Chester, Pennsylvania, United States of America.
The Respondent is Digi Real Estate Foundation, Panama City, Panama.
2. The Domain Name and Registrar
The Domain Name is <diamoniquering.com> and the Registrar is eNom.
3. Procedural History
The Complainant was filed with WIPO Arbitration and Mediation Center (the “Center”) on July 23, 2007. On July 27, 2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On July 27, 2007, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the 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 August 3, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was August 23, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 24, 2007.
The Center appointed Dawn Osborne as the sole panelist in this matter on August 30, 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 the owner of the trade mark DIAMONIQUE and owns registrations for this mark for, inter alia, jewelry, in many countries worldwide. The Complainant’s jewelry has been extensively offered and widely advertised under the trade mark DIAMONIQUE through QVC, Inc.
The Respondent, based in Panama registered the Domain Name on January 24, 2006 and has not responded to the Complaint. The Domain Name has pointed to third party websites offering jewelry.
5. Parties’ Contentions
A. Complainant
Submissions in the Complaint can be summarized as follows:
Since 1970, the Complainant has used the trade mark DIAMONIQUE for jewelry in the United States of America and across the world. The Complainant is the owner of several US federal trade mark registrations and trade mark registrations in many countries worldwide and its products have been successfully advertised and marketed by QVC, Inc. through home shopping outlets of QVC, Inc. a home television program which is broadcast to more than 166 million cable and satellite homes throughout the world via QVC USA, QVC Germany, QVC UK and QVC Japan, as well as various internet retail sites of QVC, Inc. From 1993-2006, QVC, Inc. shipped more than 40 million units of jewelry under the trade mark DIAMONIQUE and has had sales revenues of more than $2.6 million in the US alone.
The Domain Name consists of the Complainant’s trade mark DIAMONIQUE and the generic word “ring”, rings being jewelry which is the Complainant’s business. The addition of ring is not sufficient to avoid confusion with the Complainant’s mark and increases the likelihood of confusion as rings are sold by the Complainant. Members of the public are likely to be confused and assume that the Domain Name is in some way connected with the Complainant when it is not.
The Respondent has no legitimate interests or rights in the Domain Name. The Respondent is not commonly known by this name. Since the name is being used to divert to a site offering competing goods to the Complainant the name is not being used in connection with a bona fide offering of goods and services, nor a legitimate non commercial or fair use. The Respondent is in no way sponsored, endorsed by, affiliated or connected with the Complainant.
The Respondent registered the Domain Name and is using it in bad faith. The Domain Name is connected to a web site listing a number of third party web sites relating to jewelry the same area of business as the Complainant. The web site appears to be employed for commercial gain on a “pay per click” basis. The Respondent has intentionally attempted to attract for commercial gain Internet users to the web site connected to the Domain Name by creating a likelihood of confusion with the Complainant’s DIAMONIQUE name and trade mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s web site.
The Respondent has been ordered to transfer other domain names under the Policy in numerous prior UDRP decisions showing a pattern of registering and using domain names in bad faith.
B. Respondent
The Respondent has not filed a Response and is in default.
6. Discussion and Findings
According to paragraph 4(a) of the Uniform Dispute Resolution Procedure Policy, the Complainant must prove that:
(i) The Domain Name is identical or confusingly similar to a trade mark 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 Domain Name has been registered and is being used in bad faith.
A Identical or confusing similarity
The Domain Name consist of the Complainant’s DIAMONIQUE registered mark and the generic word “ring”. The addition of the word “ring” does not serve to distinguish the Domain Name from the Complainant’s mark, but indeed compounds the likelihood of confusion between the Domain Name and the Complainant’s trade mark as the Complainant sells jewelry including rings. The Panel finds that the Domain Name is confusingly similar to the Complainant’s registered trade mark DIAMONIQUE.
B Rights or Legitimate Interest of the Respondent
The Respondent has not filed a Response and does not appear to have any rights or legitimate interest in the Domain Name.
C Bad Faith
Paragraph 4 (b) of the Rules sets out four non exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including (paraphrasing and using the correct paragraph numbers):
(i) the Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of that complainant for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the Respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
It does appear that the Respondent has attempted to attract and cause confusion amongst Internet or e mail users between the Complainant’s mark and goods and the web site to which the Respondent has pointed the Domain Name for commercial gain. The Complainant does not allege that the Respondent registered the name for sale or to disrupt its business and prevent it registering the Domain Name. However the Panel notes that the Respondent has been found to be in bad faith in many other UDRP decisions and, therefore appears to be commonly engaged in the activities of registering Domain Names containing the trade marks of third parties for profit.
Accordingly, the Panel finds in the circumstances that the Domain Name has been registered and used in bad faith.
7. Decision
In the light of the foregoing, the Panel decides that the Domain Name is confusingly similar to the Complainant’s trade mark DIAMONIQUE and the Respondent has no rights or legitimate interests relating to the Domain Name which was registered and used in bad faith.
Accordingly, in the light of the above, the Panel orders the Domain Name <diamoniquering.com> to be transferred to the Complainant.
Dawn Osborne
Panelist
Dated: September 7, 2007
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