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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

DORPAN, S.L. and SOL MELIÁ, S.A. v. Heros Safarian Boghosian

Case No. D2000-1184

 

1. The Parties

The complainants are DORPAN, S.L. and SOL MELIÁ, S.A., two companies incorporated in Spain and seated in Calle Gremio Toneleros, 42, Palma de Mallorca, Spain (both collectively the "Complainants"). Their representative in this proceeding is Mr. Jorge LLevat, of Cuatrecasas Abogados, Barcelona, Spain.

The respondent is Mr. Heros Safarian Boghosian, an individual person with an address at Avenida J. S. Rein, Edificio Lance Sol, Bloque 2-4B, Fuengirola, Spain (the "Respondent").

 

2. Domain Name and Registrar

The domain name at issue is meliahoteles.com, registered with Network Solutions Inc., of Herndon, Virginia, United States of America.

 

3. Procedural History

On September 7, 2000, the Center received by e-mail a Complaint in accordance with the Uniform Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999, (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN on October 24, 1999, (the "Rules") and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). On September 12, 2000, the Complaint was received in hardcopy.

On October 5, 2000, the Center sent to the Respondent a Notification of Complaint and Commencement of Administrative Proceeding.

At the Center’s request, on September 29, 2000, the registrar confirmed to the Center that the domain name at issue is registered with it, that the Respondent is the registrant, that Mr. Sam Jalili is Administrative Contact, Technical Contact, Zone Contact and Billing Contact, that Network Solutions' 5.0 Service Agreement is in effect, and that the domain name is in "Active" status.

On October 23, 2000, the Center received a Response by e-mail. On October 27, 2000, the Center acknowledged receipt of the Response.

After having received Roberto A. Bianchiґs Statement of Acceptance and Declaration of Impartiality and Independence, on November 22, 2000, the Center appointed him as a Sole Panelist. The decision date was scheduled for December 5, 2000. Thus, the Administrative Panel finds that it has been properly constituted.

On November 22, 2000, the Panel issued a procedural order, which reads:

"Procedural Order No. 1

Case D2000-1184

Having the Panel noticed that Complainants at paragraph VI of their Complaint have failed to specify which one of the Complainants (DORPAN, S.L. or SOL MELIÁ, S.A.) should a decision by the Panel eventually favor, in case it decides to grant the remedy requested in the Complaint and to require a transfer of the domain name at issue;

The Administrative Panel orders the Complainants within TWO working days since the reception of the notification of this Order to clearly specify which one of the Complainants (DORPAN, S.L. or SOL MELIÁ, S.A.) should a decision by the Panel eventually favor. This specification is to be made by facsimile and email to the WIPO Arbitration and Mediation Center, with copy to the Respondent and the Administrative Panel.

Should the Complainants fail to comply with the present Order, the Panel shall dismiss the Complaint.

Signed: Roberto A. Bianchi

Sole Panelist

November 22, 2000"

On November 23, 2000, the Complainants, in compliance with Procedural Order No. 1, specified by fax and E-mail that, should the requested remedy of transfer of the domain name be granted by the Panel, the domain name registration should be transferred to DORPAN, S.L. On the same day the Panel decided that Complainants had complied with the order, and that the Complaint would be considered as accordingly amended.

The Panel sharing the Center’s assessment, independently finds that the Complaint, as amended, was filed in accordance with the requirements of the Rules and Supplemental Rules, and that payment of the fees was properly made.

There were no other submissions, nor were extensions granted.

The registration agreement for the domain name at issue has been done and executed in English by Respondent-Registrant and the Registrar. The Parties’ submissions have been made in English. Seeing the Panel no special circumstances to determine otherwise, as provided in Rules, Paragraph 11 the language of this proceeding is English.

 

4. Factual Background

The following facts, extracted from the Parties’ submissions and their enclosed documents, and undisputed, are established:

SOL MELIÁ, S.A. goes back to 1956, when HOTELES MALLORQUINES, S.A. (the company that originated the Meliб Group) was incorporated as a Public Limited Liability Company (Sociedad Anуnima), focused on the commercial exploitation of hotels in the island of Mallorca.

Due to the Spanish tourism boom during the sixties, the company broadened its network of hotels to all the Balearic Islands, through the re-investment of the benefits obtained by its commercial operations. In 1976, the company continued its expansion by settling several hotels and tourism resorts in the Costa del Sol and the Canary Islands.

Such an expansion continued with the acquisition in 1984 of HOTASA, a Spanish company owning several hotels in the Iberian Peninsula. This acquisition granted the company its presence in the most important cities of Spain, where it was not already settled. The same year the company decided to expand its activities to an international level, by opening its first hotel outside Spain, in Bali (Indonesia). The expansion continued in the following years, by the settling of hotels in several countries in the American continent.

In 1987, the company purchased HOTELES MELIÁ, S.A., a Spanish company that owned another network of hotels. The holding company of the group was named HOTELES MELIÁ, S.A.

In 1993, the company increased its operations in Europe. As from that time several European countries have been the objects of the companyґs constant growth.

In 1996, SOL MELIÁ, S.A. was incorporated as a consequence of the spin-off operation of HOTELES MELIÁ, S.A. Thus, SOL MELIÁ, S.A. became the owner of the management rights on the network of hotels owned by the company.

Currently, SOL MELIÁ, S.A. operates 8 different hotel brands to cover the different accommodation needs of a wide range of guest: Gran Meliб, Meliб, Meliб confort, Sol Elite, Sol Club, Sol Hotels, Sol Inn and Paradibus. At present, SOL MELIÁ, S.A. is the absolute leader in the Spanish hotel ranking in vacationing and urban stays offer. It is second in Europe and it is among the 12 main sectorial companies worldwide. It owns more than 270 hotels in 27 countries.

SOL MELIÁ, S.A. incorporated DORPAN, S.L. aiming at centralizing in a single entity all the trademarks corresponding to the SOL MELIÁ group of corporations.

DORPAN, S.L. is the owner of the Spanish trademarks MELIÁ HOTELES No. 1.513.756, applied to distinguish services in class 42 (this mark has been licensed to the other Complainant SOL MELIÁ, S.A.); MELIA HOTELES No. 1.961.283/4, applied to distinguish products in class 16 (also licensed to SOL MELIÁ, S.A.); and MELIÁ HOTELES No. 2.197.474/8, applied to distinguish services in class 42, all of them currently in force. DORPAN, S.L. is also the proprietor of the registered Community Trademark No. 16360 "MELIÁ HOTELES", applied to distinguish products and services in class 16, 39 y 42 and the international trademarks MELIÁ HOTELESNo. 576.155, to distinguish services in class 42 and MELIÁ HOTELES No. 645.022, to distinguish products in class 16.

Either of the complainants are also the owners of numerous trademark registrations in many other countries, which include the expression MELIA.

SOL MELIA, S.A. is the registrant of a great number of gTLD’s referred to the denominations "MELIÁ" and "SOL MELIÁ". The domain name "SOLMELIA.COM" registered with NETWORK SOLUTIONS on February 1, 2000. It is also the registrant of "HOTELESSOLMELIA.COM" registered with REGISTER.COM on October 7, 1999.

The Respondent registered "meliahoteles.com" with NETWORK SOLUTIONS, INC. on November 29, 1999.

Network Solutions' 5.0 Service Agreement is in effect. This version includes the Policy by reference. The Policy is in effect for NSI and the registrant-Respondent since January 1, 2000.

 

5. Parties’ Contentions

A. The Complainants contend:

MELIAHOTELES.COM is totally identical to the trademark "MELIA HOTELES" and, thus, completely meets the required element of interchangeability.

The disputed domain name was registered by Mr. Safarian Boghosian, that has no relationship at all with the legitimate owner of the rights related to the "MELIAHOTELES" trademark. Consequently, it must be concluded that the registration by the Respondent of "MELIAHOTELES.COM" was not guided by a legitimate purpose, as it could be the use of the domain name for the development of the commercial activities linked to a trademark owned by the Registrant. It seems that the only goal of such a registration was to sell or otherwise transferring it to Complainant or to another third party or to impede the use of the disputed domain name by SOL MELIA, S.A.

The Complainant has not been able to identify respondent’s commercial activities. Nonetheless, the lack of use of the disputed domain name, appear to show that the respondent, at the time of registering the disputed domain name, was not aiming to use it for professional or private activities. On the contrary, it looks as if the Respondent was only intending to sell, rent or transfer the registered domain name to the owner of the rights on the "MELIA HOTELES" trademark or to another third person.

In conclusion, in accordance with what has been stated in the present paragraph, it can be confirmed that this second criterion is also met in the present case. It can be stated that the Respondent has never had any right to the trademark "MELIA HOTELES". Indeed, SOL MELIA is the only holder of the rights related to the "MELIA HOTELES" trademark, without any participation by the Respondent or any third party in such rights. It can be stated that the Respondent does not have a fair interest in, or right to the "MELIA HOTELES" trademark and, thus, has no legitimate use for such a trademark. Consequently, the Respondent has no right at all to the "MELIAHOTELES.COM" domain name.

According to Article 4.b(i) of the Policy, it is considered bad faith the moment the disputed domain name was registered if, through such registration, the Registrant had the purpose of selling, renting or otherwise transferring it to the complainant or to its competitors for valuable consideration in excess of out of pocket expenses.

In the present case, there are no doubts that the respondent registered the disputed domain name for the an obvious purpose: to sell, rent or transfer to SOL MELIA, S.A. or to a third person the domain name corresponding to the "HOTELES MELIA" trademark, in order to obtain a valuable consideration in excess of out of pocket expenses.

Such a purpose will be analyzed in the next Paragraph, but it is important to assert that the Respondent is offering the disputed domain name in public auction through the web page of I-Bazar.es, establishing the starting price on 50,000,000 Pesetas (around 282,581.- U.S. dollars/ 300,506.- e ), evidently exceeding mere "out of pocket expenses".

Consequently, in the present case it is clear that at the time of registering the disputed domain name, the Respondent was acting on criteria completely opposed to good faith.

Mr. Safarian Boghosian has also registered other domain names corresponding to other notorious trademarks such as Iberia, Endesa, Monarch or Lufthansa, as well as domain names corresponding to facilities that have no relationship at all with Mr. Safarian Boghosian, such as AEROPUERTOMALAGA.COM (Malaga’s airport) and AEROPUERTOBARAJAS.COM (Barajas-Madrid airport). Iberia is the leading airline in Spain. Mr. Boghosian has registered the domain name "IBERIA-AIRLINE.COM". ENDESA is one of the most important electricity companies in Spain. Mr. Boghosian has registered the domain name "ENDESA.NET". MONARCH AIRLINES is one of the most important charter-airlines of the United Kingdom. Mr. Boghosian has registered the domain name "MONARCHFARES.COM". LUFTHANSA is the leading airline in Germany. Mr. Boghosian has registered the domain name "LUFTHANSAFARES.COM".

Thus, it is obvious that Mr. Safarian Boghosian has registered the domain name "MELIAHOTELES.COM" in accordance to a global strategy of "cybersquatting" domain names that are strategic for the legitimate owners of the rights on the affected trademarks.

In the present case, there are no doubts at all regarding the use in bad faith of the disputed domain name by the Respondent.

First of all, Mr. Safarian Boghosian has used the disputed domain name just to obtain unfairly a very significant capital gain. On June 30, 2000, the Respondent placed in the web page IBazar.es auctions section an offer to sell the "MELIAHOTELES.COM" domain name with an starting price of 50,000,000 Pesetas. A document granted on June 30, 2000, by the public notary of Barcelona, Mr. SUAREZ LOSADA, shows a copy of the web page where is placed the mentioned offer.

In the present case, the Respondent has offered for sale on the ibazar.es website the domain name "MELIAHOTELES.COM", which gives evidence as to the state of the respondent’s mind when he first registered the domain name. This finding is further supported by the respondent’s attempt to sell also through the same web site other domain names.

At present Mr. Safarian Boghosian is trying to sell more than fifty five domain names through I-Bazar.es. Among other domain names, Mr. Boghosian is offering CANALSUR.NET, TELELINES.COM or AEROPUERTOBARAJAS.COM, all of them corresponding to notorious Spanish trademarks, popular Spanish people or to public Spanish airport facilities. CANAL SUR is the trademark corresponding to the Public Broadcasting operator of Andalucia, the region of Spain where Mr. Safarian Boghosian appears to live. Mr. Safarian Boghosian is currently selling the CANALSUR.NET domain name at an initial price of 5,000,000 Pesetas (28,256 U.S. Dollars / 30,050 e ). TELELINE is a subsidiary company of Telefуnica, the Spanish largest telecommunications operator, focused on the Internet markets. Mr. Safarian Boghosian is currently selling the TELELINES.COM domain name at an initial price of 50,000,000 Pesetas (282,901 U.S. Dollars / 300,506 e ). The BARAJAS Airport is Madrid’s sole airport. Mr. Safarian Boghosian is currently selling the AEROPUERTODEBARAJAS.COM domain name at an initial price of 10,000,000 Pesetas (56,487 U.S. Dollars / 60,101 e ).

Concerning such type of behavior, the decisions adopted in accordance with the Policy have considered that for such an evaluation, all the circumstances referring to the Respondent’s behavior must be taken into account. It has been established that the Respondent has behaved in bad faith if the above-mentioned circumstances show that the respondent’s offering of the domain name constituted an attempt to sell it to Complainant or to a third party. Decision Number D2000-0044 (Educational Testing Service v. TOEFL) considered that a general offer for sale constitutes bad faith. Similarly in the present proceedings, respondent has sought to profit from the mere registration as a domain name of a well-known trademark. Its use to offer it for sale merely constitutes advertisement of a bad faith offer. In the present proceedings there is no evidence that respondent had a purpose for registering the disputed domain name other than for the purpose of selling it for a price in excess of its out-of-pocket costs directly related to the name, which determines such registration and use to be in bad faith.

Other decisions have considered that such behavior must be considered as constituting an act of bad faith. In that sense, the Decision adopted in case Number D2000-0353 (TV Globo Ltda. V. Burak Akgul) and case Number D2000-0393 (The Step2 Company v. Softastic.com Corporation). Evidently, these arguments apply to the present case, since "MELIAHOTELES.COM" corresponds perfectly to MELIAHOTELES’s trademark. Indeed, SOL MELIA has held the "MELIAHOTELES" trademark for more than one year.

Thus, by registering MELIAHOTELES.COM, the respondent was aiming to sell, rent or transfer it to the SOLMELIA or to a third person for a valuable consideration in excess of out of pocket expenses. Mr. Safarian Boghosian behaved in bad faith by trying to sell the disputed domain name on a public Internet auction.

Mr. Safarian Boghosian has never included any content linked to the disputed domain name, as it can be seen in the copy of the screen corresponding to the disputed domain name, as it is proved in the document granted on June 30, 2000, by the public notary of Barcelona, Mr. SUAREZ LOSADA. Decision Number D2000-0239 (J. Garcнa Carriуn, S.A. v. MЄ Josй Catlбn Frнas), has recently established a clear interpretation of the behavior of the Registrant consisting in the lack of use of the domain name.

Respondent acted in bad faith within the meaning of paragraph 4(b)(i) of the Policy. Indeed, from its behavior at the time of registering the disputed domain name and its subsequent lack of use, an unequivocal intention to sell, rent or transfer it can be deduced that Mr. Safarian Boghossian acted in bad faith.

B. Respondent alleges:

When Respondent applied to register the domain name NSI congratulated him because the name was still available and all they required from was Respondentґs personal information and a credit card number. Once they had information of Respondentґs name and last names, they must have guessed that Respondentґs name had no similarity with the so called trademark "meliahoteles" domain name requested to be registered for Respondent. All they cared for was to get paid. NSI never asked Respondent for what reason it was registering this domain as it did not have any similarity with Respondentґs name. NSI never asked for which purpose I was registering this domain as they never asked Respondent for the purpose of registering all the other domain names, as they were not interested as long as they were being paid in advance for registering all kinds of domain names Respondent was requesting. Besides this point, in Spain a company name has always the initials "S.L." or "S.A." or other after the name, meaning limited partnership etc. Respondent does not see any of these initials after the domain name "meliahoteles".

This name may, according to all the history of "Sol Melia", be a trademark in the registry office of the businesses, and therefore, it would have been impossible for Respondent to start a business in Spain under this name. As NSI have registered this domain under Respondentґs name, this must obviously mean form the fact that Respondent owns this domain, Respondent is not going to be able to use it for starting another hotel business by this name, and only this is the reason that gives Respondent the right by NSI, ICANN or any competent authority to register this name as long as Respondent pays for it from the beginning.

It is very interesting to see how ICANN is telling the respondent, only now, that he has no rights or legitimate interest in respect of the domain "meliahoteles". Why now? Why not when Respondent gave all of its personal information to NSI and paid for it?

Who gave the rights to NSI to sell a domain name to the Respondent without the consent of the owner of the so called trademark "Sol melia hotels"?

Respondent is not the one to blame for anything but the one who in the first place sold Respondent a product without the authorization of the previous owner. This of course, if ICANN really consider that Respondent has not the right to have this name. In which aspect did NSI be legitimately interested in selling this name without investigating whether Respondent can or can not have the name? The one and only existing reason is the more domain names sold, the more income for NSI or who ever else obtaining benefit from it.

Respondent has no other legitimate interest than that of NSI.

There is absolutely no proof of illegitimate use of this domain name, because there is no use whatsoever.

"What right do ICANN have of accusing me, the respondent, of having bad faith or illegitimate interest when I have been interested in selling a product that I have bought legally. If this is not legal, tell me about NSI selling the product to me in the first place, when according to ICANN, the selling of this product is acting in bad faith. I sure wish to see the authorization given to NSI by "dorpan" or "solmelia", to sell the domain "meliahoteles", or any other domain name sold by NSI."

"Since when is it acting in bad faith, buying a product and putting it away without using it? Wouldn’t it have been worse if I connected the domain name in question to another hotel’s advertising web site, or even worse to pornographic pictures? Then indeed, would it be considered as acting in bad faith and I would agree totally to it. As far as I am concerned, according to all the accusations made by ICANN, the one and only beneficiary here in the transaction of so many millions of domain names have been the NSI and as far as I am concerned, I have not made a complaint against them or any one else for this "act in bad faith and illegitimate use".

"I would like to mention an example of acting in bad faith, considering that it was ICANN that first brought up the subject. I see a car that I would like to have just for the sake of having it in my garage and probably selling it to a third party for a benefit without me using the car in a rubbery or anything else but to have it in my garage; I ask a person who is next to the car if it is for sale. Yes indeed he says. He asks me for the full payment in advance, giving me a receipt along with the documentation of the car and a congratulation note. Now it happens that this gentleman had no previous authorization from the previous owner of the car for selling it, as it happens that the previous owner is making a complaint to the department of motor vehicles against me for buying the car and the not against the seller of the car. Acting in bad faith? Who acted in bad faith according to ICANN?"

"There are thousands, if not millions of investors all over the world who have invested in domain names who will agree with me, as I have news of quite a few who are receiving this kind of complaints from ICANN after increasing the pocket money of NSI which of course in ICANN’s opinion is acting in bad faith and illegitimate use of a product belonging to a third party. I sincerely am furious for all these accusations. The complainant has not even tried to contact me at all for talking about a solution to this subject. All it occurred to ICANN was to make a complaint against me without suggesting the complainant to contact me first."

"There are news all the time, of people who have bought a domain for so much and sold it to another interested party for an incredible sum of profit, only one of them being the domain "business", which I am sure that ICANN are aware of. Did the seller of this domain act in bad faith or act illegitimately because he sold the name for a value more than the pocket expense? How many more names have been sold by investors to third parties gaining a grate sum of benefit? How come ICANN did not make a complaint then? Is it acting in bad faith and illegitimately only when there is a complaint from someone who says a domain name is similar to his business name or in any case it is acting in bad faith if one sells a domain name for a value more than the pocket expense in any case whether there is a complaint or not?"

 

6. Discussion and Findings

Identity of Confusing Similarity

Complainant DORPAN, S.L. is the owner of the MELIA HOTELES mark. Beyond any doubt, the Panel finds that the domain name "meliahoteles.com" is almost identical or, having in mind the lack of the space and the inclusion of the ".com" gTLD, at least confusingly similar to the trademark MELIA HOTELES.

The Panel thus finds that the Complainants have met their burden under Policy, Paragraph 4(a)(i).

Lack of Rights and Legitimate Interests

The Complainants have denied very specifically that the Respondent has any right or legitimate interest in the domain name. According with Rules, Paragraph 5(b)(i) and 5(b)(ix) Respondent generally carries the burden to specifically respond to the Complaint, and to present any documents in its favor. In order to prove rights and legitimate interests in the domain name Respondent may, for instance, refer to Policy, Paragraph 4(c).

In the instant case Respondent basically alleges that it has rights in the domain name because it has registered it. However mere registration cannot be the sole basis for establishing rights or legitimate interests in a domain name. The Panel accepts in this respect the following reasoning by the learned panelist in WIPO Case D2000-0044 Educational Testing Service v. TOEFL (page 6):

"If mere registration of the domain name were sufficient to establish rights or legitimate interests for the purposes of Paragraph 4(a)(ii) of the Policy, then all registrants would have such rights or interests, and no Complainant could succeed on a claim of abusive registration. Construing the Policy so as to avoid an illogical result, the Panel concludes that mere registration does not establish rights or legitimate interests in a domain name so as to avoid the application of Paragraph 4(a)(ii) of the Policy".

Respondent has suggested that it intends to sell the domain names it acquires for a profit. This does not allow in itself to find anything in favor of the Respondent.

On November 27, 2000, the Panel has independently confirmed that the web site "www.meliahoteles.com" could not be reached by using Internet Explorer. The attempt resulted in a DNS error that the web page cannot be reached. The lack of any active use of the domain name at issue, or any demonstrable preparation to use it, allows to infer that the domain name at issue is to be subject to the same practice by Respondent.

Respondent blames the registrar for "selling" the Respondent a domain name, which corresponds to a third partyґs trademark. The Panel cannot accept this argument, because by applying to register the domain name at issue the registrant-Respondent Mr. Heros Safarian Boghosian was representing and warranting to the registrar NSI that to the registrantґs " (...) knowledge, the registration of the domain name will not infringe upon or otherwise violate the rights of any third party" (Policy, Paragraph 2(b)).

Respondent has even contended that:

"Respondent has no other legitimate interest than that of NSI".

This equals to a confession that Respondent lacks any rights or legitimate interests in the domain name at issue.

The domain name at issue is not a generic word or a common-use expression as it could be said of several other domain names registered and offered for sale by Respondent. Respondent has not even attempted to suggest any preparation to use the domain name.

The Panel finds that the Complainants have met their burden under Policy, Paragraph 4(a)(ii).

Bad Faith Registration

Respondent has made sufficiently clear that its main purpose at the moment of registration was to sell the domain name at issue, in which Respondent lacks rights or legitimate interests. It has not denied that it is trying or was trying to sell the domain name in an auction held on a web auction site with a starting price of 50,000,000 Pesetas. This is certainly an evidence of bad faith registration according with Policy, Paragraph 4(b)(i), which reads:

"(...) circumstances indicating that you have registered or you have 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name;"

Additionally Respondent has incurred in the circumstance of bad faith registration described in Policy, Paragraph 4(b)(ii), which reads:

"(...) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct;"

By its registration of the domain name at issue Respondent is preventing the Complainants to reflect the trademark MELIA HOTELES in the corresponding domain name. The suppression of the space between "melia" and "hoteles" is unavoidable when registering the trademark as a domain name. Respondent has not denied the very specific allegation by Complainants, that Respondent has also registered the domain names "IBERIA-AIRLINE.COM", "ENDESA.NET", "MONARCHFARES.COM" and "LUFTHANSAFARES.COM", all of which corresponding to trademarks belonging to well known companies (Iberia, Endesa, Monarch and Lufthansa). This is undoubtedly "a pattern of such conduct" as required in Paragraph 4(b)(ii).

The Panel thus finds that the Complainants have met their burden under Policy, Paragraph 4(a)(iii).

Use in Bad Faith

For all practical purposes, the web site corresponding to the domain name is inactive, which has been accepted by Respondent. This does not mean that there is no use of the domain name. Many decisions in WIPO cases have precisely addressed this issue. In particular Case D2000-0003 Telstra Corporation Limited v. Nuclear Marshmallows established a sound criterion where inactivity and relevant circumstances, if present, allow a finding of bad faith use. In the instant case the Panel considers the following relevant circumstances:

a) As contended by the Respondent itself, it is in the business of registering and selling domain names for profit. There is no guarantee that the "meliahoteles.com" domain name is not to be subject to this business. In fact Respondent has not shown any convincing proof that it is using or preparing to use the domain name at issue for any other purpose than selling it at a profit. Respondent has even accepted that it has no better rights on the domain name at issue than NSI' s!

b) Respondent has flatly recognized that it lacks rights or legitimate interests in the domain name beyond the mere fact of registration. This cannot be the sole ground to affirm rights or legitimate interests. See above.

c) Respondentґ s offer to sale the domain name for a profit at an auction site (www.ibazar.es) is typically a bad faith use of the domain name.

d) The permanence of the present domain name registration equals to prevent the Complainants to reflect their well known trademark MELIA HOTELES in the corresponding domain name, and to undertake business on the Internet thereunder.

e) The present inactivity of the web site under the domain name leads to possible confusion among Internet users - including present or eventual customers of the Complainant - who are looking for the web site of the Complainant by using any current browser. The inactivity of the web site may lead them to conclude that the Complainant does not own a web site or that it is unable to have one.

f) Both parties are resident in Spain. Under similar circumstances Spanish Courts have granted preliminary injunctions against the domain name holders of "nocilla.com" and "metacampus.net" based on the Spanish Trademark Act of 1988, and the Spanish Unfair Competition Act of 1991, in cases where the plaintiffs were the owners of trademarks to which the challenged domain name registrations were identical or confusingly similar. See WIPO Cases D2000-0163 Raimat, S.A., D2000-0219 Uralita, S.A., D2000-0467 METRO BILBAO, S.A., D2000-0592 Canonais, S.A., D2000-0883 Antena 3 de Televisiуn, S.A., etc.

These circumstances together lead the Panel to a finding of bad faith use of the domain name, and to conclude that the Complainants have met their burden under Policy, Paragraph 4(a)(iii).

 

7. Decision

The Panel has found that the domain name "meliahoteles.com" is almost identical or at least confusingly similar to the MELIA HOTELES trademarks of the Complainants, and that the Respondent have no rights to, or legitimate interests in said domain name. The Panel has further found that the domain name has been registered in bad faith, and that it is being used in bad faith.

Therefore, pursuant to Policy, Paragraph 4(i), and Rules, Paragraph 15, the Administrative Panel requires that the registration of the domain name "meliahoteles.com" be transferred to the Complainant DORPAN, S.L.

 

 


 

 

Roberto A. Bianchi
Sole Panelist

Dated: November 29, 2000

 

Источник информации: https://internet-law.ru/intlaw/udrp/2000/d2000-1184.html

 

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