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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Levantur, S.A. v. Sean Gerrity

Case No. D2008-0777

1. The Parties

Complainant is Levantur, S.A., Spain, represented by Landwell-PricewaterhouseCoopers, Spain.

Respondent is Sean Gerrity of United Kingdom of Great Britain and Northern Ireland.

2. The Domain Name and Registrar

The disputed domain name <bahiaprincipesanfelipe.com> is registered with Tucows.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 16, 2008. On May 19, 2008, the Center transmitted by email to Tucows a request for registrar verification in connection with the domain name at issue. On May 20, 2008, Tucows 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 Respondent of the Complaint, and the proceedings commenced on May 28, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was June 17, 2008. Respondent did not submit a formal response. Accordingly, the Center notified the Respondent’s default on June 18, 2008.

On June 19, 2008, Respondent submitted an e-mail requesting further information on the Center’s notification of Respondent’s default, to which the Center replied on June 19, 2008 attaching the e-mail communication containing the Notification of Complaint and informing that it would proceed to appoint an Administrative Panel, as stated in the Notification of Respondent Default dated June 18, 2008.

Respondent sent another e-mail on June 20, 2008, stating that he did not have the e-mail communication containing the Notification of Complaint. The Center replied on June 23, 2008 referring to its e-mail of June 19, 2008, and informing that according to the Center’s records the e-mail communication containing the Notification of Complaint was transferred, and that the Center had not received any bounce-back e-mail from Respondent’s e-mail address.

The Center appointed Peter G. Nitter as the sole panelist in this matter on June 26, 2008. 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.

On July 3, 2008, Respondent sent an e-mail informing that he could not find the Notification of Complaint indicating that the e-mail communication had been deleted in Respondent’s “junk folder”. The Center replied on July 3, 2008 again attaching the e-mail communication containing the Notification of Complaint, and informing that all communications with Respondent had been brought to the Panel’s attention. A further e-mail communication was received from Respondent on July 9, 2008, objecting Complainant’s contentions.

4. Factual Background

Complainant operates several hotels and provides other services in relation to the tourist industry. Complainant forms part of the Piсero Group.

One of the hotels operated by Complainant is the Bahia Principe San Juan hotel in the Canary Islands (Spain).

Complainant has registered the trademark BAHIA PRINCIPE Clubs & Resorts in Spain (in 1998) and in the USA (in 2001).

The disputed domain name <bahiaprincipesanfelipe.com> was registered by Respondent on January 6, 2007.

5. Parties’ Contentions

A. Complainant

Complainant asserts that the disputed domain name is confusingly similar to the main part of Complainant’s trademark, BAHIA PRINCIPE, the only difference being that the term “Clubs & Resorts” has been substituted by the geographical identifier “San Felipe”.

Complainant maintains that the significant part of the disputed domain name is BAHIA PRINCIPE. According to Complainant, the term “San Felipe” refers to the location of Complainant’s hotel.

According to Complainant, Respondent is not generally known by the disputed domain name and has not acquired any rights to the disputed domain name.

Complainant informs that the website connected to the disputed domain name provides a hotel booking service, i.a. providing booking services to hotels that compete with Complainant’s hotels, without any authorization from Complainant.

Complainant maintains that it has not licensed Respondent to use its trademark in connection with a website, booking service or for any other purpose.

Complainant maintains that Respondent registered the disputed domain name in bad faith. Complainant further maintains that Respondent is using the disputed domain name to confuse users and attract them to Respondent’s website for commercial gain, and that Respondent is thus using the disputed domain name in bad faith.

B. Respondent

Respondent did not reply to Complainant’s contentions within the Response due date and is thus in default.

6. Discussion and Findings

A. Procedural aspects

Through his e-mail correspondence with the Center, Respondent has indicated that he has not received the Notification of Complaint cf. paragraph 4(a) of the Rules. Because the Respondent defaulted, the Panel has considered whether the Respondent was afforded adequate notice of this proceeding. Having reviewed the case documents, and taking into consideration that the Notification of Complaint was delivered to Respondent by courier on May 29, 2008, the Panel concludes that the Center has fulfilled its duty under paragraph 2(a) of the Rules “to employ reasonably available means calculated to achieve actual notice to Respondent”. In any event, the Panel’s consideration of Respondent’s informal communications in this matter indicates that their contents do not affect the Panel’s findings in the case.

B. Identical or Confusingly Similar

The domain name at issue is not identical to Complainant’s trademark, and the question is therefore whether there is confusing similarity between the disputed domain name and Complainant’s trademark.

The domain name at issue consists of the first two words of Complainant’s trademark “bahia” and “principe”, with the addition of the words “san felipe” and the generic top level domain denominator “.com”.

Previous panel decisions under the UDRP have concluded that the generic top level domain denominator is irrelevant when determining whether a disputed domain name is confusingly similar to a protected trademark. Thus, the first issue only concerns the part of the disputed domain names which consist of “bahiaprincipesanfelipe”.

The Panel agrees with Complainant’s assertion that the words “bahia” and “principe” form the substantial and most prominent part of Complainant’s trademark.

In the Panel’s view the mere addition of the geographical term “san felipe” to the most prominent part of Complainant’s registered trademark is not sufficient to avoid confusing similarity between the domain name at issue and Complainant’s trademark.

The confusing similarity between the disputed domain name and Complainant’s trademark is further enhanced by the fact that the term “san felipe” is similar to the name of the location of Complainant’s hotel.

On this basis the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.

C. Rights or Legitimate Interests

The Panel finds it evidenced that Respondent has not been granted any license or right to use Complainant’s trademark in any manner by Complainant, and is not commonly known by Complainant’s mark.

Respondent has not filed a formal response arguing that it has rights to, or legitimate interests in, the disputed domain name. Even though Respondent has submitted an e-mail communication objecting Complainant’s contentions, Respondent has not submitted any evidence of its rights to the disputed domain name.

In the event that any such rights, connections or affiliations existed, it would generally be relatively easy for a respondent to substantiate this, while it is generally difficult for a complainant to prove the negative that respondent has no such rights. For this reason, previous decisions under the UDRP have, in the event of a respondent’s default, found it sufficient for complainant to make a prima facie showing of its assertion pursuant to paragraph 4(c) of the Policy.

Complainant has provided evidence to the fact that Respondent has directed the domain name at issue to an Internet website offering a hotel booking service inter alia to Complainant’s hotels, and that Respondent does not have any authorization from Complainant to provide such booking service to Complainant’s hotels. The Panel further finds it established that Respondent, in addition to using the disputed domain name to provide booking services in relation to Complainant’s hotels, is also using the disputed domain name to provide booking services to other hotels that operate in competition with Complainant’s hotels. In the Panel’s view Respondent is using a domain name confusingly similar to Complainant’s trademark to bait Internet users, and then making it possible to switch these users to Complainant’s competitors. See also Experian Information Solutions, Inc. v. Credit Research, Inc. WIPO Case No. D2002-0095 and Nikon, Inc. and Nikon Corporation v. Technilab, Inc., WIPO Case No. D2000-1774.

There is nothing prohibiting Respondent from providing its services using a domain name that is not identical or confusingly similar to Complainant’s trademark.

The Panel finds that the circumstances mentioned above, and established by Complainant are sufficient to establish a prima facie showing that Respondent has no rights or legitimate interests in the domain name at issue.

As Respondent has not rebutted this by demonstrating any of the circumstances that constitute rights to, or legitimate interests in, the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy, the Panel concludes that Respondent does not have any rights or legitimate interests in respect of the disputed domain name.

D. Registered and Used in Bad Faith

The Panel has considered Complainant’s assertions and evidence with regard to Respondent’s registration and use of the disputed domain name in bad faith. Respondent has failed to invoke any circumstances that could demonstrate that it did not register and use the domain names at issue in bad faith.

The Panel accepts Complainant’s assertion that it is unlikely that Respondent was unaware of Complainant’s rights to the trademark BAHIA PRINCIPE Clubs & Resorts when registering the disputed domain name. This especially since Respondent through his website is providing a booking service for inter alia Complainant’s hotel and that the website connected to the disputed domain provides specific information on Complainant’s hotel in San Felipe.

The fact that Respondent, having knowledge of Complainant’s trademark, through the Internet websites corresponding to the disputed domain name, provides a hotel booking service that includes bookings in hotels competing with Complainant, indicates that Respondent intends to take advantage of the fame of Complainant’s trademark.

The Panel finds that the Respondent’s use of the disputed domain name is an attempt to intentionally divert customers to its website for financial gain.

Hence, the Panel finds that the disputed domain name was registered and is 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 name, <bahiaprincipesanfelipe.com> be transferred to Complainant.


Peter G. Nitter
Sole Panelist

Dated: July 10, 2008

 

Источник информации: https://internet-law.ru/intlaw/udrp/2008/d2008-0777.html

 

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