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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Club Mйditerranйe v. Yosi Hasidim
Case No. D2000-1350
1. The Parties
The Complainant is Club Mйditerranйe S.A., a French sociйtй anonyme having its registered office in Paris, France.
The Respondent is Yosi Hasidim, apparently an individual with an address at orcom, 48 hanesieim, petah – tikva, il 49550, Israel.
2. The Domain Name and Registrar
The domain name at issue is "club-med.com". The domain name registrar is Network Solutions, Inc.
3. Procedural History
Complainant filed its complaint with the World Intellectual Property Organization Arbitration and Mediation Center (the "Center") which was received by email on October 6, 2000, and in hard copy on October 9, 2000.
On October 12, 2000, the Center transmitted a request for register verification to Network Solutions, Inc. in connection with this case.
On October 16, 2000, Network Solutions, Inc. sent via email to the Center a verification response confirming that the Respondent is the registrant and that the contact for administrative, technical, zone and billing is the Respondent at mail@OR-COM.COM.
On October 17, 2000, the Center verified that the complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution (the "Supplemental Rules").
On October 25, 2000, the Center formally commenced this proceeding and notified Respondent that its response would be due by November 13, 2000. The notification was sent to the Respondent by courier and by email on October 24, 2000. The emails appear to have been transferred without receipt of any "undeliverable" notice. The courier was not delivered apparently due to an incorrect address.
Respondent did not file a response by the due date. The Center sent a notification of respondent default to the Respondent by email with a copy by email to the Complainant’s representative on November 20, 2000.
Complainant elected a single-member Panel. On December 8, 2000, after clearing for potential conflicts, the Center appointed Thomas H. Webster as the Panelist, and set December 22, 2000, as the deadline for issuance of a decision.
4. Factual Background
Because there is no response, the following facts are taken from the complaint and are generally accepted as true in the circumstances of this case.
"14. Club Med has used the CLUB MEDITERRANEE® trademark throughout the world for the past fifty years, and the CLUB MED® trademark for at least the past ten years, to identify its well-known resort hotels, all-inclusive packaged vacations and related goods and services…
15. Club Med owns hundreds of trademark registrations and pending trademark applications worldwide, including at least 74 active trademark registrations in the United States and Europe alone for marks containing the name CLUB MED®, and no less than an additional 74 active trademark registrations in the United States and Europe for marks containing the name CLUB MEDITERRANEE®…
16. Club Med spends millions of dollars each year promoting the CLUB MED® and CLUB MEDITERRANEE® trademarks and promoting an exclusive association between those marks and Club Med.
17. The CLUB MEDITERRANEE® trademark is internationally known and famous as a result of five decades of extensive and continued use and has come to be exclusively identified with Club Med.
18. The CLUB MED® trademark is internationally known and famous as a result of at least ten years of extensive and continued use and has come to be exclusively identified with Club Med…
19. …Club Med has never authorized Respondent to use the name CLUB MED as any part of a trade name, trademark or domain name.
20. As of August 17, 2000, the Club-Med.com web site contained nothing but three banner advertisements, one of which used the CLUB MED® trademark in a banner that linked to Amazon.com…
22. Following transmission of the August 25, 2000, demand letter [by counsel for Club Med] to Respondent, the content of the site at Club-Med.com was altered. The CLUB MED® trademark and link to Amazon.com was removed from the site."
5. Parties Contentions
Complainant makes the following allegations. The factual elements of such allegations are generally accepted as true in the circumstances of this case in light of the Complainant's supporting documents and in the absence of a response from the Respondent. The legal issues are discussed in the next section of this decision.
In respect of the domain names being identical or confusingly similar to a trademark or service in which the Complainant has rights, Complainant alleges that:
"23. The domain name Club-Med.com is identical or confusingly similar to Club Med’s famous CLUB MED® trademark. The mere addition of a hyphen within Club Med’s trademark does not change this result…
24. The domain name Club-Med.com is also identical or confusingly similar to Club Med’s famous CLUB MEDITERRANEE® trademark."
Complainant contends that the Respondent has no rights or legitimate interests in the domain name and relies on the following elements:
"30. Club Med has exclusive worldwide rights in and to the names CLUB MED® and CLUB MEDITERRANEE® by virtue of Club Med’s decades of substantial and continuous use of those names and its 148 active trademark registrations covering those names in the United States and Europe alone…
31. Respondent has not used the domain name Club-Med.com in connection with any offering of goods or services, much less a bona fide offering. Instead, Respondent has used the domain name only to attract Internet users to the web site by creating the false impression that the site was owned or affiliated with Club Med, and then to route those users to other web sites in the hopes of receiving future royalties.
32. Respondent has not been commonly known by the domain name and has acquired no trademark or service mark rights in that domain name. Moreover, Club Med has never authorized Respondent to use the name CLUB MED® as any part of a trade name, trademark or domain name…
33. Respondent’s lack of legitimate interest in the Club-Med.com domain name is further evidenced by the fact that Respondent changed the content of the infringing web site immediately after Club Med’s counsel had sent Respondent a letter demanding that the domain name be transferred to Club Med."
Complainant further alleges that the domain names were registered and used in bad faith by the Respondent based on the following elements:
"25. …Respondent has engaged in a pattern of registering slight variations of famous trademarks as domain names…
26. In the WHOIS database at Network Solutions, Respondent lists within his address the company name "Orcom."…a search in the WHOIS database reveals that slight variations of more than a dozen other famous trademarks have been hijacked by that company…
27. That Respondent owns this laundry list of more than 50 domain names including Club-Med.com and other companies’ famous trademarks leads to the unmistakable conclusion that he acquired them primarily for the purpose of selling, renting or otherwise transferring them to the proper owners. This constitutes evidence of bad faith registration…
28. Respondent’s bad faith registration of the domain name Club-Med.com is further evidenced by the fact that Respondent, by using that domain name, has intentionally attempted to attract Internet users to the web site for commercial gain by creating the false impression that the site was owned by or affiliated with Club Med. The Club-Med.com web site initially contained three banner advertisements, one of which used the CLUB MED® trademark in a banner that linked to Amazon.com. Following Club Med’s demand letter to Respondent, the CLUB MED® trademark and link was removed from the site…Respondent would have received royalties from Amazon.com…if any Internet user routed to those sites through Club-Med.com made a purchase at those sites."
The Respondent did not contest the above allegations of the Claimant.
6. Discussion and Findings
The burden for the Complainant under paragraph 4(a) of the Policy is to prove:
(i) That the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant 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 used in bad faith.
A. Similarity of the Domain Name and Trademark
Complainant has established its rights in the trademarks "CLUB MED®" and "CLUB MEDITERRANEE®" with numerous trademark registrations for these two names in the United States and Europe: see Chanel, Inc. v. Estco Technology Group, Case No. D2000-0413 (WIPO, Sept. 18, 2000).
This panelist finds that club-med.com is confusingly similar to the trademark "CLUB MED®". The addition of the hyphen and the suffix "com" are not enough to avoid confusion: see SeekAmerica Networks Inc v. Tariq Masood and Solo Signs, Case No. 2000-0131 (WIPO, April 13, 2000,) and BIC Deutschland GmbH & Co KG v. Paul Tweed, Case No. 2000-0418 (WIPO, June 20, 2000). The domain name is also confusingly similar to the trademark "CLUB MEDITERRANEE®" since members of the public are likely to associate it with the trademark.
B. Respondent's Rights and Legitimate Interests
The Complainant has established that these trademarks are famous in the United States and Europe. The panelist is satisfied that these trademarks must be well known in Israel as well. The Complainant has not licensed or otherwise authorized the Respondent to use any of its trademarks or to apply for any domain name incorporating the trademarks. Therefore, prior to any notice of this dispute, the Respondent could not have used the domain name in connection with any bona fide offering of goods or services.
Nor is there any evidence that the Respondent is commonly known by the domain name or is making a legitimate noncommercial or fair use of the domain name. As discussed below, the Complainant’s evidence suggests that the Respondent has attempted to use the domain name for commercial gain.
By not submitting a response, the Respondent has failed to demonstrate, pursuant to paragraph 4(c) of the Policy, that he has rights or a legitimate interest in the domain name.
Therefore, this panelist concludes on the basis of the evidence of the Complainant that the Respondent has no rights or legitimate interests in the domain name.
C. Bad Faith Registration and Use
Exhibits G and H of the complaint show a large number of domain names including club-med.com that appear to be registered by the Respondent or orcom, which, based on the Complainant's allegations, appears to also belong to the Respondent. These domain names virtually reproduce well-known trademarks. This pattern of registrations supports the inference that Respondent registered the domain name in issue to prevent the Complainant from reflecting the mark in a corresponding domain name. Respondent’s list of domain names also implies that its practice is to profit from the value of well-known trademarks that it has registered as domain names in order to sell those domain names to the owners of the trademarks or to interfere with the owners’ right to use its marks in commerce: see Nabisco Brands Company v. The Patron Group, Inc., Case No. 2000-0032 (WIPO, February 23, 2000). This is evidence of bad faith under paragraphs 4(b)(i) and (ii). The Respondent has not responded to these allegations.
Respondent’s web site contained a banner advertisement with the CLUB MED® trademark that linked to Amazon.com. The Complainant’s evidence demonstrates that such links could allow the Respondent to earn referral fees by having Internet users routed to Amazon.com to purchase Amazon’s products (Exhibit I). The Respondent’s use of the CLUB MED® trademark as a domain name appears to be an attempt to attract Internet users to Respondent’s web site for commercial gain by "creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation or endorsement" of the web site. This constitutes evidence of bad faith under paragraph 4(b)(iv) of the Policy.
The panelist therefore concludes that the Respondent registered and is using the domain name in bad faith under Section 4(b)(i), (ii) and (iv) of the Policy.
For the foregoing reasons, the panelist holds:
(a) that the domain name is confusingly similar to the trademarks "CLUB MED® and "CLUB MEDITERRANEE®" in which the Complainant has rights;
(b) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(c) the Respondent registered and has used the domain name in bad faith.
Accordingly, pursuant to paragraph 4(i) of the Policy, the domain name club-med.com should be transferred to the Complainant.
Thomas H. Webster
Dated: December 15, 2000