Luc Vets, Luc Vets Diamonds NV v. Belize Domain WHOIS Service LT
Case No. D2008-0337
1. The Parties
Complainant is Luc Vets, Antwerpen, Belgium, represented by Gert De Meutter of Belgium.
Respondent is Belize Domain WHOIS Service LT, Wisconsin, United States of America.
2. The Domain Name and Registrar
The disputed domain name <lucvetsdiamonds.com> (the “Domain Name”) is registered with Intercosmos Media Group d/b/a directNIC.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 5, 2008. On March 7, 2008, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the domain name at issue. On March 7, 2008 Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on March 11, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was March 31, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on April 1, 2008.
The Center appointed Clive L. Elliott as the sole panelist in this matter on April 9, 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 Domain Name was originally registered on June 6, 2003 by Complainant. The registration was inadvertently allowed to lapse and was registered by Domain Magic LCC on August 2, 2007. The Domain Name is currently registered in the name of Belize Domain WHOIS Service Ltd (date of registration unknown).
5. Parties’ Contentions
A. Complainant
Complainant states that he has been a diamond trader since 1971 acting under his own name Mr. Luc Vets and in 1991 he started a company in the name of “Luc Vets Diamonds NV”.
Complainant asserts that Luc Vets Diamonds NV has activities worldwide in the trading and manufacturing of diamonds. The company has more than 20 employees in Belgium and offices in the Antwerp diamond headquarters (Pelikaanstraat) and representation offices in Hong Kong, SAR of China and New York.
Complainant further asserts that the trading name Luc Vets Diamonds is identified worldwide with Mr. Luc Vets and his company and is used in magazines and marketing material.
Complainant says that although “Luc Vets Diamonds” is not a registered trademark, Luc Vets Diamonds NV has been registered as a company name in Belgium since 1991. Complainant also states that from 2004 to 2007 Luc Vets Diamonds NV used <lucvetsdiamonds.com> as its domain name and in brochures and catalogues.
The Domain Name was originally registered on June 6, 2003. Complainant advises that due to a failure to renew the domain name it was accidentally not renewed on August 2, 2007 and as soon as it became available it was registered by Domain Magic LLC, which entity transferred the Domain Name to Respondent at an unknown date.
Complainant states that it has built goodwill in connection with the sale of products under its mark.
Complainant contends that the Domain Name is identical to Complainant’s trading name, company name and the name of the owner and that it comprises a combination of the owner’s name and his activity of international diamond selling.
Complainant therefore asserts that he has shown that the name has become a distinctive identifier associated with Complainant and the goods that he sells. Complainant further asserts that Respondent is not making a legitimate noncommercial or fair use of the Domain Name and that Respondent is not specialized in the trading of diamonds and is only active in serial cyber squatting.
Complainant contends that the <lucvetsdiamonds.com> web page is merely a parking page that links Internet users to several commercial websites of different diamond topics which do not offer any services or goods and that Respondent is generating revenue from a click-through site by using Complainant’s corporate name and unregistered trademark and inherent goodwill to attract Internet traffic.
Complainant notes that on August 2, 2007, the Domain Name was taken by Domain Magic LCC and that this company’s bad faith is evidenced in its pattern of abusive registration, infringement and cyber squatting. Respondent has also been the subject of numerous WIPO and National Arbitration Forum UDRP proceedings directed at its registrations that incorporate various protected trademarks and trade names.
Complainant asserts that Respondent is intentionally attempting to attract for commercial gain Internet users to its website or other online locations by directly and voluntarily linking users to websites not related to Complainant, creating a likelihood of confusion with Complainant’s marks.
Complainant submits that Respondent is using the Domain Name to take bad faith advantage of Internet users who may be seeking diamonds and that the public will be lured to Respondent’s portals and misled as to the origins, sponsorship or association of the products or services offered via the websites reached by links on Respondent’s websites.
B. Respondent
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following:
(i) The domain name registered by Respondent is identical or confusingly similar to a trademark or name in which Complainant has rights; and
(ii) 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.
Paragraph 4(b) of the Policy sets out four illustrative circumstances that, if proved, constitute evidence of bad faith as required by paragraph 4(a)(iii) referred to above.
Paragraph 4(c) of the Policy sets out three illustrative circumstances that, if proved, constitute evidence of a right or legitimate interest as described in paragraph 4(a)(ii) referred to above.
Preliminary Comment
Given that Respondent filed no Response nor sought further time in which to do so, the Panel is required to assess the evidence and submissions filed by the Complainant alone. In the absence of any dispute as to the accuracy and correctness of that information, the Panel must decide this proceeding on the basis of Complainant’s undisputed representations and draw such inferences it considers appropriate. The Panel considers that there is nothing in Complainant’s submissions or factual statements that are clearly contradictory.
A. Identical or Confusingly Similar
It is clear that Complainant had used the trade name LUC VETS DIAMONDS and the name LUC VETS in relation to, inter alia, the trading and manufacturing of diamonds and has conducted a business in this regard since in or about 1971 in terms of the personal name LUC VETS and since in or about 1991 in terms of the trade name LUC VETS DIAMONDS, whether with or without the designation NV.
Complainant asserts that it has a worldwide presence in its field with offices in not just Belgium but through representative offices in Hong Kong, SAR of China and New York. None of these assertions are disputed and must be taken at face value.
Complainant contends that the Domain Name is identical to Complainant’s trading name, company name and the name of the owner and that it comprises a combination of the owner’s name and his activity of international diamond selling.
Given that no contest has been raised by Respondent as to the Complainant’s rights to the LUC VETS and LUC VETS DIAMONDS names the Panel accepts that Complainant has unregistered trademark rights in these names under the Policy.
On this basis it is found that:
a) Complainant has unregistered trademark rights in respect of the names LUC VETS and LUC VETS DIAMONDS.
b) The Domain Name is the same as or confusingly similar to the LUC VETS and LUC VETS DIAMONDS names.
Accordingly, the Panel is satisfied that the first element of the Policy has been met.
B. Rights or Legitimate Interests
Complainant contends that the “www.lucvetsdiamonds.com” web page is a parking page that links Internet users to several commercial websites of different diamond topics which do not offer any services or goods and that Respondent is generating revenue from a click-through site by using Complainant’s corporate name and unregistered trademark and inherent goodwill to attract Internet traffic. As before, these assertions are not disputed by Respondent.
The Panel is of the view that the Domain Name appears to be employed as a means of diverting Internet customers, looking for diamonds and diamond related topics. In those circumstances it is difficult to see how Respondent’s conduct could be characterized as legitimate. The Panel considers that it is not necessary to find that a substantial number of customers will necessarily assume that there is a connection between the parties. That is, because the one party has a long established business in the diamond business while the other has no known business in relation to those goods/services. However, the business model of registering well-known trademarks and names as domain names and deriving revenue from “click through” business is well-known. Complainant alleges that this is what Respondent is doing and a printout of Respondent’s website at “lucvetsdiamonds.com” indicates that it appears to be a portal type site containing a range links to various businesses involved in the diamonds industry.
On this basis it is found that Respondent has no rights nor legitimate interests in the Domain Name.
The Panel is satisfied that the second element of the Policy has been met.
C. Registered and Used in Bad Faith
Complainant’s assertion that Respondent is intentionally attempting to attract for commercial gain Internet users to its website or other online locations by directly and voluntarily linking users to websites not related to Complainant, thereby creating a likelihood of confusion with Complainant’s names and unregistered trademarks, has merit.
Likewise, the submission that Respondent is using the Domain Name to take bad faith advantage of Internet users who may be seeking diamonds and that they are likely to be attracted to Respondent’s portal and misled as to the origins, sponsorship or association, is also well made.
Complainant’s contention that Respondent has been repeatedly the subject of or otherwise involved in adverse decisions for the transfer of disputed domain names appears to be justified and a pattern of involvement in registering widely-known trademarks or names as domain names appears to exist. It is well established that both conduct leading to a likelihood of consumers being misled and a pattern of dubious domain name registrations can be indicative of bad faith.
The Panel has no difficulty in concluding that the third limb of the Policy has been met.
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 <lucvetsdiamonds.com> be transferred to Complainant.
Clive L. Elliott Sole Panelist
Dated: April 27, 2008
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