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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Kuoni Reisen Holding AG v. Domains Ventures

Case No. D2007-0291

 

1. The Parties

The Complainant is Kuoni Reisen Holding AG of Zurich, Switzerland, represented by E. Blum & Co., Switzerland.

The Respondent is Domains Ventures of Fujian, China.

2. The Domain Name and Registrar

The disputed domain name <kuoniholidays.com> is registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 28, 2007. On March 2, 2007, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On March 8, 2007, Moniker Online Services, 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 8, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was March 28, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 29, 2007.

The Center appointed Daniel Peсa as the sole panelist in this matter on March 10, 2007. 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

The Complainant is widely known in China and other countries for its services in the field of travel/vacation and owns and operates travel agencies also in China. The Complainant has received a number of awards including the World Travel Award and British Travel Award.

The Complaint is based on International Trademark registration No. 665981 and Community Trademark registration No. 000152660, both registrations for the KUONI mark in classes 9, 16, 39 and 42.

The Respondent uses the domain name <kuoniholidays.com> to operate a website under “www.kuoniholidays.com”. On this website, the Respondent provides information on and offers for vacation and travel.

 

5. Parties’ Contentions

A. Complainant

The domain name <kuoniholidays.com> is similar to the International Trademark registration No. 665981 and Community Trademark registration No. 000152660, both consisting of the word “Kuoni”.

The registered trademark KUONI is identically included in the domain name <kuoniholidays.com>. The addition of the word “holidays” does not change the overall impression of the domain name <kuoniholidays.com> as “holidays” is descriptive and refers directly to the content of the website that offers information and services in the field of travel and “holidays”.

The Respondent is using the <kuoniholidays.com> domain name to divert Internet users seeking a website linked to the Complainant and to its mark KUONI to the Respondent’s own website.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

 

6. Discussion and Findings

This Panel is satisfied that the Center took all steps necessary to notify the Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of the Respondent to furnish a Response to the Complaint is not due to any omission by the Center.

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 being used in bad faith.

A. Identical or Confusingly Similar

The Complainant contends that the domain name currently used by the Respondent is confusingly similar to the Complainant’s trademarks.

The Panel finds that the Complainant has provided proof of its rights to the trademark KUONI by way of International Trademark registration no. 665981 and Community Trademark registration No. 000152660, both registered in classes 9, 16, 39 and 42.

The Panel notes that the disputed domain name simply adds the expression “holidays” and finds that the additional word is not enough to avoid the likelihood of confusion. The latter reinforces similarity between the disputed domain name and the trademarks of the Complainant paragraph .

The Panel finds that the Complainant has established the first element of the Policy, paragraph 4(a)(i).

B. Rights or Legitimate Interests

The Panel considers that the Respondent is not commonly known by the domain name <kuoniholidays.com>, and has not established a reputation or built commercial good-will as a result of being identified by consumers with the name “Kuoni”.

Based on the facts and evidence, the Panel sets forth that the Respondent was also not making a legitimate non-commercial or fair use of the domain name, without the intent, for commercial gain, to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The Respondent is using the domain name < kuoniholidays.com> to lead Internet users seeking a website linked to the Complainant and to its mark KUONI to the Respondent’s own website.

By not replying to the Complainant’s contentions, the Respondent has failed to show evidence to this Panel about its possible rights or legitimate interests to the disputed domain name.

The Panel thus finds that the Complainant has established the second element of the Policy, paragraph 4(a)(ii).

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy sets forth four criteria that are to be considered as evidence of the registration and use of a domain name in bad faith:

“(i) 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; or

(ii) 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; or

(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product.”

Due to the fact that the above-mentioned trademark registrations are -widely known, including the Chinese market, and that the Respondent is also from China, it cannot be accepted by this Panel that the Respondent was not aware of the trademark KUONI to distinguish services of tourism and travel.

On the contrary, in the Panel’s point of view, the registration and use of the disputed domain name creates a likelihood of confusion with the Complainant’s trademark, corporate name, and domain names as to the source, sponsorship, affiliation, or endorsement of the disputed domain name. Internet visitors who enter the Internet address “www.kuoniholidays.com”, expect to arrive at Complainant’s website. However, they are diverted to another online location.

Accordingly, the Panel finds that the Complainant has met the requirements of paragraph 4(a)(iii) of the Policy.

7. Decision

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 <kuoniholidays.com> be transferred to the Complainant.


 

Daniel Peсa
Sole Panelist

Dated: April 24, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-0291.html

 

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