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VRL International Ltd. v. Domaincar
Case No. D2006-0240
1. The Parties
The Complainant is VRL International Ltd., SuperClubs, George Town, Grand Cayman, Cayman Islands, United Kingdom of Great Britain and Northern Ireland, represented by Katten Muchin Rosenman LLP, United States of America.
The Respondent is Domaincar, Panama, of Panama.
2. The Domain Names and Registrar
The disputed domain names <breezes-zanibar.com> and <superclubbreeze.com> are registered with BelgiumDomains, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 24, 2006. On February 27, 2006, the Center transmitted by email to BelgiumDomains, LLC a request for registrar verification in connection with the domain name at issue. On March 3, 2006, BelgiumDomains, LLC 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 March 6, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was March 26, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 28, 2006,.
The Center appointed Gabriel F. Leonardos as the sole panelist in this matter on April 18, 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 began operations in Jamaica in 1976, through a company related by common ownership. Complainant currently uses SUPERCLUBS as its house brand and uses three main individual brands to reflect its different types of resorts, namely GRAND LIDO, HEDONISM and BREEZES. Complainant and its affiliates operate at least sixteen (16) beachfront or becah club resorts in several different countries, and at least ten (10) of such resorts are known and promoted under the brands BREEZES and SUPERCLUBS BREEZES.
Complainant owns several trademark registrations worldwide for trademarks SUPERCLUBS, SUPERCLUBS BREEZES and BREEZES. Among the oldest ones are several Jamaican registrations for the trademark SUPERCLUBS issued on January 6, 1986, a United States registration (No. 2,228,394) for SUPERCLUBS BREEZES issued on March 2, 1999, and a Chilean registration (No. 469.569) for BREEZES issued on October 16, 1996.
Complainant has spent more than USD $ 60 Million since 1999, on worldwide advertisement of services covered by the trademarks SUPERCLUBS and BREEZES. Such services have also been subject of several newspaper, magazine and trade press articles with international circulation.
On the Internet there are several web sites operated by the Complainant, such as “www.superclaubs.com” and “www.breezes.com”. Several places where there are resorts identified under the BREEZES brand also have their own web sites such as “www.breezesbahamas.com” and “www.breeezesbrazil.com”.
5. Parties’ Contentions
Complainant argues that the disputed domain names are the same visually and phonetically as the trademarks SUPERCLUBS and BREEZES, to which Complainant has exclusive rights. Complainant also claims that the disputed domain names have the same commercial meaning and source identification to the public as such trademarks, meaning the all-inclusive resorts associated with the Complainant. In that regard, Complainant contends that the domain name <breezes-zanibar.com> implies a resort located in Zanzibar, Tanzania.
Complainant thus alleges that members of the public who find the disputed domain names on the Internet through search engines or otherwise are likely to believe falsely and mistakenly that the source or origin of such domain names is the Complainant, or one of its affiliates, or is in some way endorsed or approved by the Complainant, when, if fact, the opposite is true.
Complainant also holds that the Respondent has no rights or legitimate interest in respect of the disputed domain names and that Respondent has registered and uses them in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy the Complainant must prove each of the following:
(i) That the domain name registered by the Respondent is identical or confusingly similar to the trademarks or service marks in which the Complainant has rights; and
(ii) That the Respondent has no rights or no legitimate interests in respect of the domain name; and
(iii) That the domain name has been registered and is used in bad faith.
A. Identical or Confusingly Similar
The Complainant has several registered trademarks concerning the designations SUPERCLUBS and BREEZES, which substantially pre-date the Respondent’s registration of the domain names.
The only differences between the disputed domain names and the Complainant’s trademarks is the addition of “ZANIBAR” in the domain name <breezes-zanibar.com> and the deletion of the letter “S” in the domain name <superclubbreeze.com>.
The Panel finds that both domain names are confusingly similar to Complainant’s registered trademarks SUPERCLUBS BREEZES and BREEZES. While the domain name <breezes-zanibar.com> implies a resort located in Zanzibar, Tanzania, the use of the designation BREEZE immediately causes confusion with the Complainant’s trademark BREEZES. The domain name <superclubbreeze.com> is almost identical to Complainant’s trademark SUPERCLUBS BREEZES.
In this context, the Panel finds that the domain names <breezes-zanibar.com> and <superclubbreeze.com> both meet the requirement of the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Panel understands that under paragraph 4(a)(ii) of the Policy the overall burden of proof is on Complainant. However, once the Complainant presents prima facie evidence that the Respondent lacks rights or legitimate interest the burden shifts to the Respondent. See Julian Barnes v. Old Barn Studios, WIPO Case No. D2001-0121 and Belupo d.d. v. Wachem d.o.o., WIPO Case No. D2004-0110.
Respondent has not filed any Response to the Complaint and thus has not provided any other evidence or elements to justify any rights or legitimate interest in connection with the disputed domain names. Therefore, the Panel has found no indication in the evidence it received that any of the circumstances described in Paragraph 4(c)(i)-(iii) of the Policy could apply to the present matter.
Complainant’s contention that its registered trademarks pre-dates the Respondent’s registration of the domain names is accurate. The Panel agrees that it was indeed unlikely that the Respondent was unaware of the Complainant’s trademarks.
In addition, it has not been shown that Respondent runs any business associated with the disputed domain names. Accordingly, the use of the domain names <breezes-zanibar.com> and <superclubbreeze.com> is not considered legitimate use in connection with bona fide offering of goods and services.
Given the circumstances the Panel finds that Respondent has no right or legitimate interest in respect to the domain names (the Policy, Paragraph 4(a)(ii)).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy specifies certain non-exhaustive circumstances which, if found by the Panel to be present, are evidence of the registration and use of the domain names in bad faith.
The Panel is convinced that Respondent was aware of Complainant’s trademark rights at the time of registration of the disputed domain names. This knowledge of the Complainant’s trademarks is confirmed by the fact that the disputed domain name <superclubbreeze.com> contains almost in its entirely the Complainant’s trademarks SUPERCLUBS and BREEZES and that the domain name <breezes-zanibar.com> is practically identical to the domain name <breezes-zanzibar.com>, owned and operated by Complainant to identify the Breezes Beach Club & Spa Zanzibar.
In fact, the Panel finds that the misspelling of the name Zanzibar in the Respondent’s domain name <breezes-zanibar.com> is a common form of typosquatting of domain names, that only indicates more clearly that Respondent acts in bad faith in relation to Complainant. The absence of the letter “S” in the Respondent’s domain name <superclubbreeze.com> equally indicates typosquatting. The Panel understands that typosquatting is per se an indication of bad faith, as already decided, among several other cases, in Bang & Olufsen a/s v. Unasi Inc, WIPO Case No. D2005-0728 and The Nasdaq Stock Market, Inc. v. Act One Internet Soluctions, WIPO Case No. D2003-0103.
There is no indication of actual use of the disputed domain names by the Respondent but there is strong indication that the registration of the domain names was primarily for the purpose of disrupting the Complainant’s business and of attracting, for commercial gain, Internet users to another web site (not operated by the Complainant) by creating a likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation, or endorsement of such web site or of services to be offered on it.
Accordingly, the Panel determines that Respondent has acted in bad faith within the meaning of Paragraph 4(b)(iii) and (iv) of the Policy.
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 names, <breezes-zanibar.com> and <superclubbreeze.com>, be transferred to the Complainant.
Gabriel F. Leonardos
Dated: May 2, 2006