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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Amanresorts Limited and Amanresorts International Pte Ltd. v. Domains By Proxy, Inc. and Legacy International Group

Case No. D2007-1419

1. The Parties

The Complainants are Amanresorts Limited of Hong Kong, SAR of China, and Amanresorts International Pte Ltd of Singapore (hereinafter also jointly and severally referred to as the “Complainants”), internally represented.

The Respondents are:

1. Domains By Proxy, Inc., United States of America;

2. Legacy International Group, United States of America;

(hereinafter also jointly and severally referred to as the “Respondents”).

2. The Domain Names and Registrar

The disputed domain names <amanresorts-officialwebsite.com> and <amanresortsofficialwebsite.com> (hereinafter also referred to as the “Domain Names”) are registered with GoDaddy.com Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 25, 2007 naming as Respondent Domains By Proxy Inc. On September 26, 2007, the Center transmitted by email to GoDaddy.com Inc. a request for registrar verification in connection with the Domain Names at issue. On September 26, 2007, GoDaddy.com Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed Domain Names which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainants on October 9, 2007 providing the registrant and contact information disclosed by the registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainant filed an amended Complaint on October 15, 2007. The Center verified that the Complaint together with the amended 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 October 25, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was November 14, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 6, 2007.

The Center appointed Alfred Meijboom as the sole panelist in this matter on December 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.

4. Factual Background

The Complainants Amanresorts Limited and Amanresorts International Pte Ltd are both owned by the holding company Silverlink Holdings Limited, and are part of the Amanresorts group of companies, which owns and manages a chain of luxury resort hotels around the world. Whilst all the trademarks owned by the Amanresorts group are registered in the name of Amanresorts Limited, Amanresorts International Pte Ltd owns part of the goodwill accruing to the trademarks as a result of its continued use and promotion of the marks.

The Complainants own and/or manage eighteen luxury resort hotels around the world, which are collectively marketed and promoted under the trademark AMANRESORTS. The Complainants have won numerous awards and achieved widespread publicity for their AMANRESORTS trademark.

The Complainant Amanresorts Limited hold, amongst many others, the following trademarks:

- the US trademark AMAN, registered since August 22, 2006 for various goods and services in classes 3 and 44 (reg. No. 3,133,393);

- the US trademark AMAN, registered since March 30, 2004 for hotels in class 42 (reg. No. 2828188);

- the US trademark AMANRESORTS, registered since July 13, 2004 for various goods and services in classes 39 and 42 (reg. No. 2,861,837).

Furthermore, the Complainants hold, amongst many others, the domain name <amanresorts.com>.

The Domain Names were registered on August 20, 2007. The Domain Names lead to similar so called parking websites with various sponsored links and advertisements for Go Daddy.com Inc.

5. Parties’ Contentions

A. Complainant

The Complainants have asserted that the Domain Names are confusingly similar to the Complainants’ registered AMANRESORTS trademark, since the Domain Names contain the entire mark in conjunction with the generic descriptive words “official website”.

The Complainants have not licensed or otherwise permitted the Respondents to use its AMANRESORTS trademark or apply for any domain name incorporating the trademark and that the Respondents are not making a legitimate non-commercial or fair use of the Domain Names without intent for commercial gain. Therefore, according to the Complainants, the Respondents have no rights or legitimate interests in respect of the Domain Names.

Furthermore, the Complainants have stated that the Domain Names were registered and are being used in bad faith.

The first ground on which the Complainants have alleged bad faith is that the Respondents, by using Domain Names that are confusingly similar to the Complainants’ well-known AMANRESORTS trademark, are intentionally attempting to attract Internet users to their websites for commercial gain, by creating a likelihood of confusion with the Complainants’ trademark as to the source or sponsorship of the Respondents’ websites. According to the Complainants this is particularly so since the Domain Names contain the descriptive words “official website” in addition to the Complainants’ trademark, giving rise to the impression that the websites are sponsored by the Complainants. The Respondents’ commercial gain can be inferred from the presence of the ‘sponsored listings’ on the websites.

Furthermore, the Complainants have asserted that Internet users would be misled into thinking that they are accessing the Complainants’ “official website” when accessing the websites linked to the Domain Names. The Complainants have put forward that this is likely to cause great damage to the Complainants’ goodwill and business, since the Complainants have no control over the websites the Domain Names resolve to.

The second ground on which the Complainants have alleged bad faith is the Respondents’ largely passive holding; the Domain Names resolve to a parking webpage containing sponsored links. With reference to (General Growth Properties Inc. v. Baker Ballantine, WIPO Case No. D2005-0919), the Complainants put forward that such passive holding constitutes bad faith as (a) the Complainants have a well-known trademark; (b) the Respondents make no response to the Complaint; (c) the Respondents conceals their identity; and (d) it is impossible to conceive of a good faith use of the Domain Names on the part of the Respondents. In the present case, the Complainants have stated that these four requirements have been met.

B. Respondent

The Respondents did not reply to the Complainants’ contentions.

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the requested remedy can be granted if the Complainants assert and prove each of the following:

A. that the Domain Names are identical or confusingly similar to a trademark or a service mark in which Complainants have rights; and

B. that the Respondent has no rights or legitimate interests in respect of the Domain Names; and

C. that the Domain Names have been registered and are being used in bad faith.

Proper Parties Respondent

The Respondents Domains by Proxy, Inc., known to provide privacy services, was listed as the registrant of the Domain Names in the WhoIs register prior to the filing of the Complaint. Following the filing of the Complaint, the registrar notified the Center that the registrant of the Domain Names was Legacy International Group. In similar cases panels have found that both the privacy service provider and the registrant communicated to the Center by the registrar in response to the request to verify the registrant, are proper parties respondent (see e.g. (MySpace, Inc. v. Patrick F. Bily,Domains by Proxy, Inc., WIPO Case No. D2007-0633) and Ohio Savings Bank v. 1&1 Internet, Inc. and David Rosenbaum, WIPO Case No. D2006-0881). Accordingly, the Panel finds that both Domains by Proxy, Inc. and Legacy International Group are proper parties respondent, and in this decision they are referred to jointly and severally as the “Respondents”.

A. Identical or Confusingly Similar

The Complainants hold several AMAN and AMANRESORTS trademark registrations, including a US registration for AMANRESORTS (No. 2,861,837). The Panel finds that the Complainants have rights in the AMANRESORTS trademark.

For the purpose of assessing whether the Domain Names are identical or confusingly similar to the AMANRESORTS trademark in which the Complainants have rights, the “.com” suffix is disregarded, it being a necessary component. The difference between the AMANRESORTS trademark and the Domain Names is the addition of “-officialwebsite” and “officialwebsite” at the end. The Panel is of the opinion that these additions do not reduce, but rather may increase the likelihood of confusion as the added wording could be considered as emphasizing authenticity of the Domain Names in view of Complainants’ trademarks. As a result the Panel considers the Domain Names <amanresorts-officialwebsite.com> and <amanresortsofficialwebsite.com> to be confusingly similar to the Complainants’ AMANRESORTS trademark.

B. Rights or Legitimate Interests

According to paragraph 4(c) of the Policy the complainant should prove that the respondent has no right or legitimate interests in the domain name. According to the consensus view among panels, this condition is met if the complainant makes a prima facie case that the respondent has no rights or legitimate interests and the respondent fails to show rights or legitimate interests.

The Complainants have undisputedly contended that they have not licensed or otherwise permitted the Respondents to use their trademark and the Respondents have not disputed the Complainants’ claim to that effect. Nor could the Panel establish any indications that the Respondents were previously known under the Domain Names or are using the Domain Names for bona fide offering of goods or services, or for non-commercial or fair use. For these reasons and in view of the use of the Domain Names as defined below, the Panel finds that the Respondents have no rights or legitimate interests in the Domain Names.

C. Registered and Used in Bad Faith

The Complainants have asserted that the AMANRESORTS trademark is renowned worldwide. This has been acknowledged by the Panel in (Amanresorts Limited and Amanresorts International Pte Ltd v. Minakumari Periasamy / Domain Finance Inc., WIPO Case No. D2007-0526) Furthermore, the Complainants have demonstrated that they have won numerous awards and achieved widespread publicity for their AMANRESORTS trademark. The Domain Names are composed of the distinctive term “amanresorts”, which is identical to the AMANRESORTS trademark of the Complainants, and the words “official website”. For these reasons, in accordance with ACCOR, Sociйtй Anonyme а Directoire et Conseil de surveillance v. Tigertail Partners, WIPO Case No. D2002-0625, the Panel finds it reasonable to conclude that only someone who was familiar with the AMANRESORTS trademark could have registered the Domain Names. Consequently, the Panel finds that the Domain Names were registered in bad faith.

The Complainants must also prove that the Respondents’ use of the Domain Names in bad faith.

In accordance with paragraph 4(b) of the Policy, an indication of use in bad faith is found where the respondent is intentionally attempting to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the complainant trademark as to the source, sponsorship, affiliation, or endorsement of his website or of a product or service on his website.

The Respondent has generated traffic to the websites linked to the Domain Names by creating a likelihood of confusion with the AMANRESORTS trademark, even increasing the confusion by adding the words “official website”. The websites lead to similar so called parking websites with various sponsored links and advertisements for GoDaddy.com Inc., which use is considered to be use for commercial gain. Therefore, the Panel concludes that the Respondents’ use of the Domain Names satisfies the requirement of paragraph 4(a)(iii) of the Policy that the Domain Names are being used in bad faith.

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 Names, <amanresorts-officialwebsite.com> and <amanresortsofficialwebsite.com> be transferred to the Complainants.


Alfred Meijboom
Sole Panelist

Dated: December 21, 2007

 

Источник информации: https://internet-law.ru/intlaw/udrp/2007/d2007-1419.html

 

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