WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Amanresorts Limited and Amanresorts International Pte Ltd v. Minakumari Periasamy / Domain Finance Inc.
Case No. D2007-0526
1. The Parties
The Complainants are Amanresorts Limited of Hong Kong, SAR, and Amanresorts International Pte Ltd of Singapore, (collectively called the “Complainant”) represented by Penny Leng, Singapore.
The Respondent is Minakumari Periasamy / Domain Finance Inc., of Malaysia.
2. The Domain Name and Registrar
The disputed domain name is registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April�5,�2007. On April�10,�2007, the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On April�10,�2007, eNom transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on April�16,�2007. The Center verified that the Complaint together with the amendment to 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 April�26,�2007. In accordance with the Rules, paragraph 5(a), the due date for Response was May�16,�2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May�18,�2007.
The Center appointed Alan L. Limbury as the sole panelist in this matter on May�24,�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
Since 1988 the Complainant and other companies in the same group have owned, managed and promoted, under the trademark AMAN, luxury resort hotels around the world. Since 1993, the Complainant has won numerous awards and achieved widespread publicity for its AMAN hotels.
The disputed domain name was registered on July�22,�1997. Subsequently, Amanresorts Limited registered the trademarks AMAN and AMAN RESORTS in numerous countries. Both of the Complainants own part of the goodwill accruing to the marks.
The disputed domain name resolves to a website containing only sponsored links to commercial websites, some of which are travel-related websites of the Complainant’s competitors.
5. Parties’ Contentions
A. Complainant
The Complainant contends that the domain name is identical to its AMAN trademark and that the Respondent has no rights or legitimate interest in the domain name, which was registered and is being used in bad faith.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires the Complainant to prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The Panel is satisfied that the Complaint was delivered to the Respondent on April�28,�2007 by courier. The Respondent having failed to file a Response, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the Complainant: Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441. See also Microsoft Corporation v. Freak Films Oy, WIPO Case No. D2003-0109; SSL International plc v. Mark Freeman, WIPO Case No. D2000-1080 and Alta Vista Company v. Grandtotal Finances Limited et al., WIPO�Case No. D2000-0848.
A. Identical or Confusingly Similar
Although the Complainant’s registered marks postdate the domain name registration, the prevailing view amongst panelists is that paragraph 4(a)(i) of the Policy embodies no requirement that the complainant’s trademark rights must have arisen before the disputed domain name was registered. See Valve Corp. v. ValveNET, Inc., WIPO Case No. D2005-0038 and the cases there cited.
Apart from its registered marks, the Complainant has satisfied the Panel that, through use, it has acquired common law rights in the AMAN mark and that it did so prior to the registration of the disputed domain name. The mark was well-known in South East Asia and elsewhere at that time.
The domain name is identical to the Complainant’s AMAN mark, the specific top level domain “.com” being inconsequential: Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
The Complainant has established this element.
B. Rights or Legitimate Interests
The Complainant says it has not licensed or otherwise permitted the Respondent to use its AMAN trademark or to apply for any domain name incorporating that mark; that the domain name bears no resemblance to the Respondent’s personal or corporate name; and that the Respondent is not making a legitimate or fair use of the domain name without intent for commercial gain misleadingly to divert consumers or to tarnish the trademark at issue.
These circumstances are sufficient to constitute a prima facie showing by the Complainant of absence of rights or legitimate interest in the disputed domain name on the part of the Respondent. The evidentiary burden therefore shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name: Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624 and Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753.
In the absence of a Response, the Panel finds that the Respondent has no rights or legitimate interest in the domain name.
The Complainant has established this element.
C. Registered and Used in Bad Faith
The Panel has found that the Complainant’s common law rights in the mark AMAN had come into existence before the domain name was registered in 1997 and that the mark was well known in South East Asia and elsewhere at that time.
There is no direct evidence before the Panel as to the Respondent’s knowledge of the mark or intent when the domain name was registered in 1997. However, the only evidence of use of the domain name before the Panel leads to the conclusion that users seeking the Complainant by means of the disputed domain name are likely to be confused into thinking that the Respondent’s web site is associated with the Complainant. The sponsored links available at the Respondent’s web site are of the kind from which it may be expected that the Respondent makes commercial gain.
In the absence of a Response, the Panel finds that Respondent is using the domain name intentionally to attempt to attract, for commercial gain, Internet users to the Respondent’s web site by creating a likelihood of confusion with the Complainant’s mark as to the affiliation of the Respondent’s web site.
Under the Policy, paragraph 4(b)(iv), this finding shall be evidence of both bad faith registration and bad faith use. The Policy thus enables such a finding to be made where bad faith use within 4(b)(iv) is the only evidence tending to show the purpose for which the domain name was registered. Where there is other relevant evidence, such as evidence that the domain name was registered for a permissible purpose, it must be weighed against any evidence of bad faith registration constituted by evidence of bad faith use within 4(b)(iv): Passion Group Inc. v. Usearch, Inc., eResolution case AF-0250, followed in Viz Communications, Inc., v. Redsun dba and David Penava, WIPO Case No. D2000-0905.
Here there is no other evidence to show the purpose for which the domain name was registered. Accordingly, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith.
The Complainant has established this element.
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 be transferred to the Complainant Amanresorts International Pte Ltd.
Alan L. Limbury
Sole Panelist
Dated: June�7,�2007
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