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and Mediation Center
ADMINISTRATIVE PANEL DECISION
Sociйtй des Bains de Mer et du Cercle des Йtrangers а Monaco v. Maison Tropicale S.A.
Case No. D2007-0604
1. The Parties
The Complainant is Sociйtй des Bains de Mer et du Cercle des Йtrangers а Monaco, of Monte Carlo, Principality of Monaco, represented by De Gaulle Fleurance & Associйs, France.
The Respondent is Maison Tropicale S.A., of The Valley, British West Indies, Anguilla, United Kingdom of Great Britain and Northern Ireland.
2. The Domain Name and Registrar
The disputed domain name <hotelhermitagemonaco.com> is registered with Capitoldomains, LLC (hereinafter “Domain Name”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 20, 2007. On April 23, 2007, the Center transmitted by email to Capitoldomains, LLC a request for registrar verification in connection with the Domain Name at issue. On April 23, 2007, Capitoldomains, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. 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 May 3, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May 23, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 24, 2007.
The Center appointed Anna Carabelli as the sole panelist in this matter on June 6, 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.
Upon reviewing the Complaint and the Annexes attached thereto, the Panel issued the Procedural Order No. 1 which was notified to the parties on June 14, 2007, requesting the Complainant to submit by June 20, 2007, an official trademark registration certificate. The Panel also postponed the deadline for decision until June 27, 2007. On June 14, 2007, the Complainant submitted a copy of the requested trademark registration certificate.
On June 15, 2007, the Complainant submitted a copy of the official trademark registration certificate of the HOTEL HERMITAGE MONTE CARLO.
The Panel independently determined and agrees with the assessment of the Center that the Complaint formally complies with the requirements of the Policy, the Rules and the Supplemental Rules.
4. Factual Background
The Complainant submitted a copy of the official trademark registration No. 01-22310 of HOTEL HERMITAGE MONTE CARLO with the Principality of Monaco Trademark Office.
The Complainant’s Hotel Hermitage Monte Carlo (i) exists since 1863 (Annex G) and (ii) is a 4 stars Luxe hotel listed in the exclusive international luxury hotels & resorts guide “The Leading Hotels of the World” (Annex L).
The Respondent registered the Domain Name on February 27, 2007.
The Domain Name is used as a referral portal redirecting Internet users to several commercial links related to residence, resorts and hotels facilities and services.
5. Parties’ Contentions
The Complainant contends that:
The Complainant is a company owned in the majority by the Government of the Principality of Monaco which since the 19th century owns and has been running the Hotel Hermitage of Monte Carlo as well as the Casino of Monte Carlo;
The Complainant registered its trademark HOTEL HERMITAGE MONTE CARLO in the Principality of Monaco on March 19, 2001, which is a world renown trademark;
The Domain Name is confusingly similar to the Complainant’s registered trademark as it incorporates the words “Hotel” and “Hermitage” explicitly relating to the Principality of Monaco, the combination of which is distinctive and immediately brings to the public’s mind the Complainant’s business activity.
The Respondent has no rights or legitimate interests in respect of the Domain Name as the Complainant (i) has never authorized nor has granted any license to the Respondent for the use of its registered trademark (ii) the Respondent does not appear to be the holder of any registered trademark including the words “Hotel”, “Hermitage” and “Monaco” or “Monte Carlo” (iii) the Respondent has no geographical link with the Principality of Monaco and it is not exploiting any Hotel in Monaco (iv) the Respondent is not using the Domain Name in connection with any bona fide offering of goods or services.
The Respondent has registered and is using the Domain Name in bad faith as the strong notoriety of the Complainant’s trademark makes it impossible to believe that the Respondent was ignoring the Complainant’s trademark rights. Moreover, the use of the Domain Name as a referral portal, likely generating click-through fees, cannot be considered a bona fide use of a domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant submitted evidence of registration of HOTEL HERMITAGE MONTE CARLO with the official trademark register of the Principality of Monaco.
The Panel deems that the Domain Name is confusingly similar to the Complainant’s trademark as it incorporates the words “Hotel Hermitage” and since the replacement of the name “Monte Carlo” with the name “Monaco” is not capable to sufficiently differentiate the Domain Name from the Complainant’s trademark. As a matter of fact, as held in previous UDRP decisions, even though “Monte Carlo” and “Monaco” are not synonyms they are commonly used interchangeably. (see: La Sociйtй Anonyme des Bains de Mer et du Cercle des Etrangers а Monaco v. Thomas Proud,
WIPO Case No. D2000-1316; La Sociйtй Anonyme des Bains de Mer et du Cercle des Etrangers а Monaco v. Internet Marketing Associates,
WIPO Case No. D2000-1317). This circumstance is further confirmed by the fact that a search on the Internet inputting into Google and Yahoo! search engines the words “hotel hermitage monte carlo” and “hotel hermitage monaco” leads to the same results.
In light of the above, the Panel finds that the Complainant has met the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out in particular but without limitation three circumstances which, if proved by the Respondent, shall be evidence of the Respondent’s rights to or legitimate interests in the domain name for the purpose of paragraph 4(a)(ii), namely:
(i) before any notice of the dispute to the Respondent, the Respondent’s use of, or demonstrable preparation to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods and services; or
(ii) the Respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the Respondent has acquired no 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.
The Complainant has established prima facie that the Respondent has no rights or legitimate interests in the Domain Name under Policy, paragraph 4(c). According to a consistent line of UDRP decisions in such a case the burden of proof shifts to the Respondent to rebut the evidence. (see among others Carolina Herrera, Ltd. v. Alberto Rincon Garcia,
WIPO Case No. D2002-0806; International Hospitality Management – IHM S.p.A. v. Enrico Callegari Ecostudio,
WIPO Case No. D2002-0683). As a consequence, the Respondent’s failure to rebut the Complainant’s allegations, allows the Panel to infer, taking into consideration the circumstances of this case, that the Respondent has no such rights or legitimate interests.
Moreover, the Panel finds, in line with UDRP decisions, that the Respondent’s use of the Domain Name to divert Internet users to his website and redirect them to other websites, in all likelihood receiving compensation for this misdirection, cannot be considered a bona fide use of a domain name as per paragraph 4(c)(iii) of the Policy. (See e.g.: Lyonnaise de Banque v. Richard J.,
WIPO Case No. D2006-0142, Motorola, Inc. v. Mr. Josip Broz,
WIPO Case No. D2002-1063).
Consequently, the Panel deems that the Respondent has no rights or legitimate interests in the Domain Name under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
As established in section 6.A. above, the Domain Name is confusingly similar to the Complainant’s trademark which was registered before the registration of the Domain Name by the Respondent.
The Panel accepts that the Hotel Hermitage of Monte Carlo is well known in the world as it exists since 1863 and is listed in the exclusive international luxury hotels & resorts guide “The Leading Hotels of the World”. Consequently, the Panel accepts that the Respondent was likely aware of the Complainant’s rights at the time of registration of the Domain Name.
Moreover, such conduct as the Respondent’s use of the Domain Name as a referral portal to redirect Internet users to third parties’ sites, very likely for the purpose of collecting referral or click-through fees, has been held by panels as clear evidence of bad faith use of a domain name (see Volvo Trademark Holding AB v. Unasi, Inc.,
WIPO Case No. D2005-0556; Fresh Intellectual Properties, Inc. v. Matt Braska,
WIPO Case No. D2005-0096; Philip Morris Incorporated v. r9.net,
WIPO Case No. D2003-0004).
In light of both the above circumstances, the Panel deems that the Domain Name was registered and is being used in bad faith and accordingly finds that the Complainant has satisfied the requirement of paragraph 4(a)(iii) 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 name <hotelhermitagemonaco.com> be transferred to the Complainant.
Dated: June 27, 2007