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and Mediation Center
Quiroocan, S.A. de C.V. v. ZJ
Case No. D2005-1310
1. The Parties
The Complainant is Quiroocan, S.A. de C.V., Barcelу Group, Palma de Mallorca, Baleares, Spain represented by Herrero & Asociados, Spain.
The Respondent is ZJ, Shanghai, China.
2. The Domain Name and Registrar
The disputed domain name <barcelomayabeachresort.com> 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 December 19, 2005. On December 20, 2005, 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 December 20, 2005, Intercosmos Media Group d/b/a directNIC.com 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 29, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was January 18, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 19, 2006.
The Center appointed Gerd F. Kunze as the Sole Panelist
in this matter on January 26, 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,
4. Factual Background
The Complainant belongs to the Barcelу Group, which is an international hotel group with headquarters in Spain. In the year 1999, the group opened in Mexico, close to the Cancun International Airport, the “Barcelу Maya Beach Resort” complex which consists of several hotels with over 1000 bedrooms. The Complainant is the registered owner of the Mexican trademark no 800.593, word BARCELO MAYA BEACH RESORT, registered on January 27, 1999, in class 43.
The Respondent registered on June 3, 2005, the domain
name <barcelomayabeachresort.com>. As evidenced by the Complainant with
copies of the respective website pages, the domain name was linked to a website,
where general information about the Barcelу Maya Beach Resort was provided but
also links to other hotels where offered. At present the domain name leads to
a general information site that under the heading “www.information.com”
provides links to all kinds of topics such as gambling, dating, etc.
5. Parties’ Contentions
The Complainant submits that Barcelo is the name of one of the 30 largest hotel companies in the world in terms of number of rooms. It has more than 32000 bedrooms in 19 countries all over the world with over 100 hotels in ownership, management and franchising regimes.
It furthermore submits that searching for “Barcelу” or “Barcelo” at the google search engine leads to no other company than the Barcelу Group, and that both on the market and in the Internet Barcelo Maya Beach Resort identifies only the resort of the Barcelу Group.
As evidence the Complainant submits an Annual Report of the Barcelу group and a brochure of the Barcelo Maya Beach Resort.
The Complainant concludes that the domain name <barcelomayabeachresort.com> can only have been registered in bad faith with the sole aim of attracting a misled public to the Respondent’s website in the search for information about the resort of the Baleу Group. If somebody intends to search the Barcelo Maya Beach Resort in the Internet, he may easily type “www.barcelomayabeachresort.com” in order to obtain information about the resort. In that case the website “www.barcelomayabeachresort” may induce errors to the public, since the site contains not only information about the Resort but also information of other hotels as well as general information of the Mayan Riviera in the Cancun region of Mexico.
In conclusion the Complainant submits that (A) the domain name <barcelomayabeachresort.com > is identical to its trademark BARCELO MAYA BEACH RESORT in which it has rights; and (B) the Respondent has no rights or legitimate interests in respect of the domain name; and (C) the domain name was registered and is being used in bad faith.
The Respondent has failed to submit a Response. It
has therefore not contested the contentions of the Complaint and the Panel shall
decide on the basis of Complainant’s submissions, and all inferences that
can reasonably be drawn there from (Rules, paragraph 14(b)).
6. Discussion and Findings
A. Identical or Confusingly Similar
It is common practice for domain names and Internet addresses that several words are written in one sequence, since spaces between the words are not possible. Therefore the domain name <barcelomayabeachresort.com> must be considered to be identical to the Complainant’s trademark BARCELONA MAYA BEACH RESORT (the gTLD “.com” is not to be taken into consideration when assessing identity or confusing similarity). Anyhow, there can be no doubt that the domain name is confusingly similar to the Complainant’s trademark, since Internet users typing that domain name will expect to arrive at a website of the Complainant.
B. Rights or Legitimate Interests
In connection with hotel services, offered both by the Complainant and on the website to which the Respondent linked the disputed domain name, the term “barcelomayabeachresort” is not a descriptive term, because it is identical to the name of the Complainant’s beach resort complex and contains the distinctive word Barcelo, which is the well established name of the hotel group of which the Complainant is a part. The Complainant has not licensed its trademark to the Respondent nor otherwise consented to the Respondent’s use of the domain name.
Furthermore, none of the circumstances listed under paragraph 4(c) of the Policy, possibly demonstrating rights or legitimate interests, are met. According to the Complainant’s submissions, the Respondent has not used the domain names in connection with a bona fide offering of goods or services and has not demonstrated any preparations for such use. The Respondent has not challenged these submissions. As evidenced by the Complainant, the Respondent uses the domain names to divert traffic to commercial/advertisement websites that, amongst others, offer hotel reservation services in competition with the Complainant. The Complainant rightly points out that this is not a bona fide offering of goods or services. The Panel is also satisfied that such use cannot be considered to be non-commercial. It would make no sense for the Respondent to provide links to websites offering services of competitors of the Complainant, if it where not to attract a fee, the more as such arrangements are common.
The Panel concludes in application of Paragraph 14(b) of the Rules that the Respondent has failed to submit any circumstances to demonstrate rights to or a legitimate interest in the domain name as requested under Paragraph 4(c) of the Rules. The Panelist is therefore satisfied that the Respondent has no rights or legitimate interests in respect of the domain name.
C. Registered and Used in Bad Faith
For a Complainant to succeed, the Panel must be satisfied that a domain name has been registered and is being used in bad faith. The Policy mentions in Paragraph 4(b)(iv) of the Rules as circumstances which shall be evidence of registration and use of a domain name in bad faith that the Respondent, by using the domain name, has intentionally attempted to attract, for commercial gain, Internet users to his 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 the location or a service on that location. These circumstances are fulfilled in the present case.
It is obvious that the Respondent was aware of the Barcelу Maya Beach Resort of the Complainant, when it registered the domain names. Otherwise it would not carefully have chosen a domain name consisting of the specific name of this Resort.
By using this domain name in relation with links for competitive hotel services the Respondent created a likelihood of confusion between the Complainant’s mark and the disputed domain name, since Internet users, typing the domain name, will expect to arrive at a website of the Complainant. When being confronted with the Search Site of the Respondent, which also but not exclusively contained information about the Complainant’s resort, such users were likely to assume that there existed some kind of relationship between this site and the Complainant. That the Respondent provided these links for commercial gain is obvious. Therefore the Respondent, by using the domain name for links to a Search site, has intentionally attempted, to attract, for commercial gain, Internet users to this site by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of this site and the services offered on it.
In conclusion the Respondent registered the domain name in dispute in bad faith
and is using it in bad faith. The fact that after the commencement of these
proceedings the Respondent ceased to provide a link to the before described
website which offered services of other hotels, and at present links the domain
name to a general search site, named “www.information.com”, does
not change this conclusion, the more as it can be assumed that the Respondent
provides the latter link also for commercial gain.
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 <barcelomayabeachresort.com> be transferred to the Complainant.
Gerd F. Kunze
Dated: February 3, 2006