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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Amanresorts Limited, Amanresorts International Pte Ltd v. Website-Biz.com

Case No. D2007-1275

1. The Parties

The Complainants are Amanresorts Limited, Hong Kong, SAR of China and Amanresorts International PTE Ltd, Singapore (referred to below as “Complainant”) represented by Penny Leng, Singapore.

The Respondent is Website-Biz.com, San Dimas, United States of America.

2. The Domain Name and Registrar

The disputed domain name <amanpulo.org> is registered with NamesDirect.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 28, 2007. On August 31, 2007, the Center transmitted by email to NamesDirect.com a request for registrar verification in connection with the domain name at issue. On August 31, 2007, NamesDirect.com 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 September 11, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was October 1, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 2, 2007.

The Center appointed Christian Schalk as the sole panelist in this matter on October 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.

The Panel agrees with the Center’s assessment concerning the Complainant’s compliance with the formal requirements. The Complaint was properly notified to the Respondent in accordance with paragraph 2(b) of the Rules.

The Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties. The language of the proceedings is English.

4. Factual Background

The Complainant owns and/or manages luxury resort hotels around the world, including the Amanpulo resort (referred to below as “the resort) in the Philippines which opened first in 1993. The resort has been regularly featured in leading travel and leisure magazines like Vogue and Elite Traveller. The Complainant has won numerous awards in the past years for its chain of luxury hotels as well as its resort.

The Complainant owns the following trademark registrations for the term AMANPULO:

Philippines (all with priority date of December 7, 1993):

- trademark registration No. 66911, covering goods and services in class 25;

- trademark registration No. 65224, covering goods and services in class 16;

- trademark registration No. 65777, covering goods and services in class 39;

- trademark registration No. 65782, covering goods and services in class 42

Hong Kong (all with priority date of November 5, 1993):

- trademark registration No. 07371/1995, covering goods and services in class 3;

- trademark registration No. 07372/1995, covering goods and services in class 16;

- trademark registration No. 07373/1995, covering goods and services in class 25

- trademark registration No. 04487/1996, covering goods and services in class 39

- trademark registration No. 04488/1996, covering goods and services in class 42

Brunei Darussalam (all with priority date of November 16, 1993):

- trademark registration No. 19851, covering goods and services in class 3

- trademark registration No. 20381, covering goods and services in class 16

- trademark registration No. 20152, covering goods and services in class 25

- trademark registration No. 33407, covering goods and services in class 42

The Respondent registered the disputed domain name on July 22, 2007. The domain name at issue is linked with a website which provides among others links to websites of hotel guides, to South Beach Hotels and to discount hotels. The headlines on the top of the website are:

Amanpulo.org

Helping you find what you want

Air travel – hotel deals – cruise – all inclusive vacation package – all inclusive resorts – discount hotel – all inclusive”

On August 20, 2007, the Complainant sent a cease and desist letter to the Respondent via e-mail and as a hardcopy.

One August 22, 2007, the Complainant received an e-mail response from the Respondent who stated that one of his services is the registration of domain names for others. He wrote further, that

- the domain name at issue has been registered for a non-profit organization which wanted to remain anonymous at this time;

- that this organization provides reviews of resorts and hotels;

- plans to use it to feature comments and reviews of the customers of the Respondent;

- the gTLD “.org” is appropriate for such purpose since it is intended for non-profit or religious organisation;

- the website development has not yet been completed and

- the [current] website provides a feature that forwards a registered domain to related services and this is the reason why travel related services are now offered in this site.

On August 23, 2007, the Complainant contacted the Respondent via e-mail again and asked him to reconsider his position.

The Respondent replied the same day that

- [the registration and use of the disputed domain name] is not just a trademark [issue] alone but also a “right to use matter”;

- the gTLDs “.com”, “.net”, “.org” were [originally] created to prevent ‘Internet Monopoly’ and therewith prevent absolute control to any domain name by one entity.

5. Parties’ Contentions

A. Complainant

The Complainant alleges that the domain name at issue is identical with his AMANPULO trademark.

The Complainant alleges further, that the Respondent has no rights and interests in the disputed domain name.

The Complainant has not licensed or otherwise permitted the Respondent to use his trademark or to apply for any domain names incorporating the trademark. The disputed domain name bears no resemblance to the Respondent’s name or business and the Respondent is not using this domain name in a bona fide offering goods and services. The Complainant states furthermore, that the Respondent is not making a legitimate non-commercial or fair use of the disputed domain name without intent for commercial gain. It would be the same even if the Respondent would have intended to use the disputed domain name in a bona fide offering of services. In this context the Complainant cites WIPO Case No. D2006-1219, Amanresorts Limited & Amanresorts International Pte Ltd v. Eric Tomacruz.

The Complainant alleges moreover, that the disputed domain name has been registered and is being used in bad faith.

The Complainant believes that the Respondent was well aware of the Complainant’s trademark when he registered the domain name at issue. He states that this can be shown by the fact that the Respondent stated in his reply to the Complainant’s cease and desist letter, that he intended to use the domain name at issue to feature comments and reviews on the Complainant’s resorts.

The Complainant states further that the domain name at issue resolves to a website containing hyperlinks to travel sites, some of which feature the Complainant’s competitors. In his opinion this constitutes bad faith under Paragraph 4(b)(iv) of the policy since the Respondent is using the domain name at issue in bad faith by attracting Internet users for commercial gain to his website by creating likelihood of confusion with the Complainant’s trademark as the source, sponsorship, affiliation, or endorsement of the Respondent’s website. The Complainant cites WIPO Case No. D2007-0142, The Trustees of the British Museum, The British Museum Company Limited v. British Museum Resources, Limited to support his conclusions.

B. Respondent

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

6. Discussion and Findings

The Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law it deems applicable (paragraph 15(a) of the Rules). Pursuant to paragraph 4(a) of the Policy, a domain name can be transferred only where the Complainant has proven that each of the following three elements is present:

(A) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(B) The domain name holder has no rights or legitimate interests in respect of the domain name; and

(C) The domain name has been registered and is being used in bad faith.

It is essential to dispute resolution that fundamental due process requirements be met. Such requirements include that a Respondent has notice of proceedings that may sub-stantially affect its rights. The Policy and the Rules establish procedures intended to assure that a Respondent is given adequate notice of proceedings initiated against him, and a reasonable opportunity to respond (paragraph 2(a) of the Rules).

In this case, the Panel is satisfied that the Center took all steps reasonably 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 reply is not due to any omission by the Center.

Since the Respondent has not contested the allegations of the Complainant, the Panel shall decide on the basis of the Complainant’s plausible submissions of fact, and all inferences that can reasonably be drawn therefrom (see Bayerische Motorenwerke AG v. Dariusz Herman, Herman DOMCREATE et co., WIPO Case No. DNAME2004-00001).

A. Identical or Confusingly Similar

The Complainant has established rights in the trademark AMANPULO. Ignoring, as the Panel is entitled to do, the generic “.org” Top Level Domain, the domain name at issue is identical with the Complainant’s AMANPULO trademark (see also Deutsche Post AG v. MailMij LLC, WIPO Case No. D2003-0128).

B. Rights or Legitimate Interests

According to the material brought before the Panel and in the absence of a response to the Complaint, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name for the following reasons:

The Respondent has not provided any evidence of circumstances of the type specified in paragraph 4(c) of the Policy, or of any other circumstances giving rise to a right to or legitimate interest in the domain name. Especially, there is no evidence that the Respondent is known by the domain name at issue. The Complainant has also never granted the Respondent a license to use its trademark.

Furthermore, the fact that the contested domain name which is identical to the Complainant’s distinctive AMANPULO mark, is linked with a website which provides links to hotel guides, to South Beach Hotels and discount hotels and therewith to Complainant’s competitors does not show a bona fide offering of goods and services. Even if the Respondent would be engaged in providing genuine reviews of resorts and hotels on the Internet, the Panel would not find any legitimate interest in using exactly the disputed domain name composed of Complainant’s trademark with the sole apparent purpose of free-riding on that mark, and thereby attracting Internet users to Respondent’s website.

C. Registered and Used in Bad Faith

The Complainant contends that the Respondent registered and uses the domain name in bad faith in violation of the Policy, paragraph 4(a)(iii). The Policy paragraph 4(b) sets forth four non-exclusive criteria for the Complainant to show bad faith registration and use of domain names:

(1) circumstances indicating that the Respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the domain name; or

(2) the 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 the Respondent has engaged in a pattern of such conduct; or

(3) the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(4) by using the domain name, the 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 its website or location of a product.

According to the material brought before the Panel and in the absence of a response to the Complaint, the Panel finds that the disputed domain name has been registered and used by the Respondent in bad faith in accordance with paragraph 4(b)(iv) of the Policy for the following reasons:

It is a well-established principle under prior UDRP decisions (see, for instance, Carolina Herrera, Ltd. v. Alberto Rincon Garcia, WIPO Case No. D2002-0806; Six Continents Hotels, Inc. v. Seweryn Nowak, WIPO Case No. D2003-0022) and under the Policy (see Section 2), that the domain name registrant represents and warrants to the registrar that, to this knowledge the registration of the domain name will not infringe the rights of any third party. Noting inter alia the fact that the trademark AMANPULO is specifically used at the website linked to the domain name at issue, the Panel finds that the Respondent was aware of the Complainant’s trademark when he registered the disputed domain name (see Liseberg AB v. Administration Local Management Technical, WIPO Case No. D2003-0864). Therefore, the Panel believes that the Respondent registered the domain name at issue in bad faith.

Furthermore, given the nature of the website maintained by the Respondent, the only purpose of having registered the disputed domain name, was to divert traffic intended for the Complainant’s website to its own, or otherwise benefit from likely Internet-user confusion, and thus to take advantage of the Complainant’s trademark and its reputation. Moreover, it provides Internet users, seeking information on the Complainant’s services, access to goods and services of the Complainant’s competitors. The Respondent’s use of the disputed domain name puts the Complainant at risk of commercial losses if Internet users register for other hotels that they became aware of when visiting the <amapulo.org> - website. Furthermore, the use of the Complainant’s trademark in such a way does also dilute its goodwill.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4 (b) (ii and iv) of the Policy and paragraph 15 of the Rules, the Panel orders that the domain name <amanpulo.org> be transferred to the Complainant.


Christian Schalk
Sole Panelist

Dated: October 22, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1275.html

 

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