WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Amanresorts Limited v. Access Bali Online
Case No. D2004-0219
1. The Parties
The Complainant is Amanresorts Limited, Hong Kong, SAR of China, represented by Wilkinson & Grist, Hong Kong, SAR of China.
The Respondent is Access Bali Online, Denpasar, Bali, Indonesia.
2. The Domain Names and Registrar
The disputed domain names: , , , , (the "Disputed Domain Names") are registered with Intercosmos Media Group d/b/a directNIC.com.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 20, 2004. On March 22, 2004, the Center transmitted by email to Intercosmos Media Group d/b/a directNIC.com a request for registrar verification in connection with the Disputed Domain Names. On March 22, 2004, Intercosmos Media Group d/b/a directNIC.com transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant of each of the Disputed Domain Names and providing the contact details for the administrative, billing, and technical contacts. 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 25, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was April 14, 2004. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 16, 2004.
The Complainant requested a 3-member Panel for this Administrative Proceeding and the Center appointed Alistair Payne, James W. Dabney and Ilhyung Lee as Panelists in this matter on May 3, 2004. Each member of 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 the proprietor of a number of registrations for the trademark "AMANRESORTS" in a number of classes and in various jurisdictions around the world, including Indonesia (where the Respondent is located), Hong Kong, Australia, Community Trademark, Thailand and Vietnam. The earliest of these trademark registrations dates back to 1992. Copies of registration certificates for some of these registrations are annexed to the Complaint.
The Complainant is also the proprietor of:
- a number of pending applications for the trademark "AMANRESORTS" covering International Classes 35, 39, 41 and 42 in a number of jurisdictions including the Bahamas, India, and the USA;
- more than 200 registrations and pending applications for trademarks incorporating the prefix "AMAN" which include "AMANDARI," "AMANUSA," "AMANJIWO," "AMANKILA," and "AMANWANA" covering a number of classes; and
- the domain name registered in December 1996, from which the Complainant operates its official website.
The Complainant is the owner of all copyrights subsisting in the artworks, photographs and literary texts in the Complainant's brochure and website at featuring, inter alia, its "AMANDARI," "AMANUSA," "AMANWANA," "AMANKILA" and "AMANJIWO" resort hotels. Copies of the Complainant's brochures and contents of the Complainant's web pages featuring these resort hotels are also annexed to the Complaint.
5. Parties' Contentions
A. Complainant
1. The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights
The Disputed Domain Names are almost identical and/or confusingly similar to (a) the Complainant's domain name and (b) the Complainant's trade name and trademark AMANRESORTS.
The Complainant is the creator and proprietor of the trademark AMANRESORTS under which the Complainant operates a chain of luxurious resort hotels under various names, most of which begin with the prefix "AMAN" including but not limited to AMANDARI, AMANUSA, AMANJIWAO, AMANKILA and AMANWANA. AMANRESORTS has been used as the trade name of the Complainant in Hong Kong since July 1989. AMANRESORTS has also been used as a trademark for the Complainant resort hotel services for over 10 years.
The Complainant has been acknowledged and acclaimed in many international periodicals and journals to be the operator of the world's best resort hotels. Random copies of articles in business and travel journals featuring the Complainant as a hotelier owning and operating the world renowned resorts are annexed to the Complaint. The Complainant is well known in the travel industry and amongst the traders and public. The trade name and/or trademark AMANRESORTS denotes the Complainant and no one else. As of the dates of registration of the Disputed Domain Names, the reputation of the Complainant was already well established in the travel industry.
2. The Respondent has no rights or legitimate interests in respect of the Disputed Domain Names
The Respondent is a travel agency that has referred some but not many customers to the Complainant. The Respondent has no relationship with or permission from the Complainant to use the Complainant's trade name and/or trademark AMANRESORTS and/or any word confusingly similar thereto. The Respondent does not have any basis upon which it can assert its rights or legitimate interest in the Disputed Domain Names.
The Respondent is not commonly known by the name "AMANRESORT." The Respondent always refers to itself as "Access Bali Online" or "ABL." Copies of the history and information of the Respondent downloaded from the Respondent's website at ("") referring to itself as "Access Bali Online" or "ABL" are annexed to the Complaint.
The Respondent does not offer any goods and/or services under the Disputed Domain Names, but links the Disputed Domain Names to another website at ("") which is a site operated by the Respondent in relation to its travel agency services.
3. The Disputed Domain Name was registered and is being used in bad faith
At the web pages "/amanresort" from which the Respondent's domain name is linked, the Respondent has, without the consent of the Complainant, copied, reproduced and used the Complainant's copyrighted photographs in its webpages. Further, the literary text of the Complainant's web pages concerning the "AMANJIWO" resort hotel has also substantially been reproduced in the Respondent's said web pages.
Registration of the Disputed Domain Names by the Respondent is in bad faith as the Respondent has deliberately chosen domain names which are almost identical and/or confusingly similar to the domain name of the Complainant. By featuring the Complainant's copyrighted artworks, photographs and literary text on the web pages at "/amanresort" from which the Respondent's domain name is linked to, the Respondent has deliberately misled and/or attempted to mislead Internet users to the Respondent's website mistaking the website as the Complainant's or that the Respondent's website is affiliated to, sponsored by and/or endorsed with the consent of the Complainant. It is obvious that the Respondent is using the Disputed Domain Names with an intent for commercial gain to misleadingly divert the Complainant's customers. The Respondent is not making a legitimate non-commercial or fair use of the Disputed Domain Names.
The Respondent had in the past engaged in the same conduct by registering the domain name and linking this domain name to its website "" which contained reproduction of the Complainant's copyrighted materials (see Amanresorts Limited v Access Bali Online, WIPO Case No. D2001-1083).
By using the Disputed Domain Names, the Respondent has intentionally attempted to attract for financial gain Internet users to the Respondent's website by creating a likelihood of confusion with the Complainant's trade name, trademark and/or the domain name as to the source, sponsorship, affiliation or endorsement of the Respondent's website or location or of the Complainant's resort hotels on the Respondent's website.
B. Respondent
The Respondent did not reply to the Complainant's contentions. Under paragraphs 5(e) and 14(a) of the Rules, the effect of a default by the Respondent is that the Panel shall proceed to a decision on the Complaint. Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences from the Respondent's default as it considers appropriate under the circumstances.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this Administrative Proceeding and obtain the requested remedy (in this case transfer of the Disputed Domain Names to the Complainant), the Complainant must prove that each of the three following elements are present:
(i) each of the Disputed Domain Names is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the Disputed Domain Names; and
(iii) each of the Disputed Domain Names has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
This element of the Policy requires the Complainant to prove (a) that it has rights in a trademark or service mark, and (b) that each of the Disputed Domain Names is identical to or confusingly similar to such trademark or service mark.
The Complainant has proved that it has registered trademark rights in the mark AMANRESORTS. Each of the Disputed Domain Names incorporates this mark in its entirety, the only differences being the use of the singular `resort' in each of the Disputed Domain Names and the addition of the gTLD suffixes which play no distinguishing role. Adopting the decision of the learned Panelist in the case of Amanresorts Limited v Access Bali Online, WIPO Case No. D2001-1083 (which concerned the domain name ), the Panel finds that each of the Disputed Domain Names is confusingly similar to the Complainant's AMANRESORTS mark and accordingly that this element of the Policy is established.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out a number of circumstances that a Respondent may use to demonstrate its rights or legitimate interests to the domain name.
Although the Complainant admits that the Respondent has referred some business to it, the Respondent has not been authorized to use the Complainant's AMANRESORTS trademark either as an official agent or licensee of the Complainant, or otherwise. The Respondent has not replied to the Complainant's contentions and there is no evidence to suggest that the Respondent has rights or legitimate interests in respect of any of the Disputed Domain Names.
Accordingly, the Panel finds that this element of the Policy is established.
C. Registered and Used in Bad Faith
In the absence of contrary evidence from the Respondent, the Panel accepts that the Respondent registered each of the Disputed Domain Names with at least constructive knowledge of the Complainant's AMANRESORTS mark. The Panel notes that the Complainant has multiple registrations for its trademark in the country in which the Respondent is located, which it obtained prior to the Respondent's registration of each of the Disputed Domain Names. The Respondent has intentionally attempted to attract for commercial gain internet users to its websites (including to a site that has reproduced copyright material of the Complainant without the Complainant's consent) by creating a likelihood of confusion with the Complainant's AMANRESORTS mark as to the source, sponsorship, affiliation or endorsement of the Respondent's website and its contents. The Panel notes that the Respondent has also been the subject of a previous decision under the Policy to transfer the domain name to the Complainant.
The Panel finds that the Complainant has proved this element of the Policy. The Complaint succeeds.
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, , , , and be transferred to the Complainant, namely Amanresorts Limited.
Alistair Payne
Presiding Panelist
James W. Dabney
Panelist
Ilhyung Lee
Panelist
Dated: May 18, 2004
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