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Nova Hotels Ltd. v. International Lifestyles, Inc.
Case No. D2005-1298
1. The Parties
The Complainant is Nova Hotels Ltd., Zanzibar, United Republic of Tanzania, represented by Sujit Shah, Sweden.
The Respondent is International Lifestyles Inc., Hollywood, Florida, United
States of America, represented by Katten Muchin Rosenman LLP, United States
2. The Domain Name and Registrar
The disputed domain name <breezesbeachclubzanzibar.com> (the “Domain
Name”) is registered with Moniker Online Services, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”on December 15, 2005. On December 16, 2005, the Center transmitted by email to the Registrar a request for registrar verification in connection with the domain name at issue. On December 17, 2005, the Registrar 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 20, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was January 9, 2006. The Response was filed with the Center on January 10, 2006.
The Center appointed Dr. Bernhard F. Meyer-Hauser
as the sole panelist in this matter on January 19, 2006. 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
Complainant runs a 70 room resort situated on the
East Coast of Zanzibar, Tanzania. This resort is operated under the name “Breezes
Beach Club Zanzibar” and is marketed under the website “www.breezes-zanzibar.com”.
On January 6, 1997, Complainant registered the business name “Breezes
Beach Club” according to the Registration of Business Names Decree, Cap.
168 of Zanzibar. On October 26, 2004, Complainant registered the trademark “Breezes
Beach Club Zanzibar” in Zanzibar according to the Trade Mark Decree (CAP
159) Under Rule 97.
Respondent provides travel and lodging reservations and related travel agency services under a license of the “BREEZES” trademarks from the trademark owner VRL International Ltd. (“VRL”). VRL owns and operates “BREEZES” beach front resorts in several countries. VRL registered the trademark “BREEZES” in the Bahamas in 1994, as in several other countries. In August 2002, VRL registered the trademark “Superclubs Breezes” in the United Republic of Tanzania. In September 2005, Respondent registered the trademark “Breezes” in Zanzibar. Respondent registered its first official “www.breezes.com” website in 1998.
The Domain Name was registered on January 27, 2005,
5. Parties’ Contentions
Complainant objects to the use of the Domain Name by Respondent and bases its Complaint on the following grounds:
1. The Domain Name is identical or at least confusingly similar with the trademark “Breezes Beach Club Zanzibar” owned by the Complainant. Breezes Beach Club Zanzibar is a registered name in Zanzibar.
2. The Respondent has no right or legitimate interests in respect of the Domain Name:
a) Respondent does not operate in Zanzibar at all and it does not operate Breezes Beach Club in Zanzibar.
b) There is no evidence of Respondent’s use or demonstrable preparations to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of the services.
c) Respondent has never been commonly known by the Domain Name.
d) Respondent is making a non-legitimate non-commercial and unfair use of the Domain Name, with intent for commercial gain misleadingly to divert consumers and to tarnish the trademark at issue.
3. The Domain Name was registered and is used in bad faith.
a) The Domain Name was registered primarily for the purpose of selling, renting or otherwise transferring the registration to Complainant or to a competitor of Complainant.
b) The Domain Name was registered in order to prevent the owner of the trademark “Breezes Beach Club Zanzibar” from reflecting the mark in a corresponding domain name.
Complainant requests the Panel to order a transfer of the Domain Name from Respondent to Complainant.
Respondent submitted following responses to the statements of the complaint:
1. Complainant’s alleged “marks” is not a trademark, but rather a business name registration.
2. Complainant has no valid trademark rights related to “beach club”.
3. Complainant has no valid trademark rights to “Zanzibar”.
4. Complainant has no valid prior rights to the trademarks “Breezes”, “Breezes Beach Club” or “Breezes Beach Club Zanzibar” related to the beach club and hotel related services. VRL was unequivocally the first user and first trademark registrant of the word “Breezes”.
5. Respondent has prior rights and legitimate interests
related to the Domain Name. The Domain Name was not registered primarily for
the purpose of selling, renting, or otherwise transferring the registration
to the Complainant or to a competitor of Complainant.
6. Discussion and Findings
Paragraph 4(a) of the Policy sets forth three elements that must be established by a Complainant to merit a finding that a Respondent engaged in an abusive domain name registration and to obtain relief. These elements are that:
(i) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) Respondent’s domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant provided evidence that it registered the trademark “Breezes Beach Club Zanzibar” in Tanzania. This trademark is identical to the disputed Domain Name. Respondent did not provide any evidence to the Panel that this trademark registration is not valid.
Complainant therefore has fulfilled the requirements of para. 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
According to para. 4(c) of the Policy, the following circumstances can demonstrate rights of a respondent and legitimate interests in a domain name:
(i) before any notice was given to the Respondent of the dispute, the Respondent used, or demonstrably made preparations to use, the domain name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even though it has not acquired any trademark or service mark rights; or
(iii) The Respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Respondent registered the trademark “Breezes” in 1994. Respondent is conceivably interested that any domain name containing the component “Breezes” may not be used by other parties. It therefore registers domain names containing the component “Breezes”.
It appears obvious that Respondent does not intend to actively use the disputed
Domain Name. All websites of Respondent containing the component “breezes”
and a geographical designation (i.e. www.breezesbrazil.com) are generally redirected
to Respondent’s website <breezes.com>. Respondent’s domain
names that do not follow this pattern are generally inactive. The disputed Domain
Name is composed of the component “breezes”, the geographical designation
“Zanzibar” and, in between, the component “beach club”.
For this reason, and since Respondent does not promote its services under the
component “beach club”, the Panel assumes that Respondent does not
intend to actively use the disputed Domain Name. As a matter of fact, the disputed
Domain Name is still inactive although having been registered by Respondent
a year ago. Respondent does not use the component “Beach Club” for
marketing its services and Respondent does not operate hotel resorts in Zanzibar
nor does he intend to do so.
In conclusion, Respondent has no legitimate interest in exactly this Domain Name. It only appears to have a legitimate interest in the relatively non-distinctive component “breezes” of the Domain Name, but a legitimate interest to use a the substantially broader Domain Name can not be seen.
For the reasons set forth above, Respondent has no legitimate interest in respect of the Domain Name in the sense of paragraph 4(c) of the Policy.
C. Registered and Used in Bad Faith
According to para. 4(b) of the Policy, the Domain Name has been used and registered
in bad faith if:
(i) circumstances indicating that Respondent has registered and 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, Respondent has intentionally attempted to attract,
for commercial gain, Internet users to its website 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 Respondent’s website
or location or of a product or service on its website or location.
As set forth above, Respondent primarily registered the disputed Domain Name
with the purpose of preventing others to register domain names containing its
trademark “Breezes”. However, Respondent thereby inhibits Complainant
to reflect its broader trademark in a corresponding domain name. As Respondent
does not actively use the Domain Name and Respondent is likely to have known
Complainant's trademark when it registered the Domain Name, the Panel considers
this as bad faith according to paragraph 4(b)(iv) of the Policy.
In consideration of the above, the Panel holds that the Domain Name is identical to the registered mark of Complainant, that Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Domain Name has been registered and is used in bad faith.
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 <breezesbeachclubzanzibar.com> shall be transferred to the Complainant.
Dr. Bernhard F. Meyer-Hauser
Dated: February 2, 2006