WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Kamehameha Investment Corporation v. K and Louis S, Open Water Enterprises Limited
Case No. D2007-1783
1. The Parties
The Complainant is Kamehameha Investment Corporation of Honolulu, Hawaii, United States of America, represented by Godbey Griffiths Reiss LLLP, United States of America.
The Respondents are K of United States of America, and Louis S, Open Water Enterprises Limited of Seychelles (collectively referred to as “the Respondents”).
2. The Domain Name and Registrar
The disputed domain name is registered with Dotster, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 1, 2007, by email and in hard copy on December 12, 2007. On December 4, 2007, the Center transmitted by email to the Registrar a request for verification in connection with the domain name at issue. On December 4, 2007, the Registrar transmitted by email to the Center its verification response noting that the current registrant is not K but Louis S of Open Water Enterprises Limited. In response to a notification by the Center that the registrant had been identified as being different to the entity named in the initial Complaint as Respondent, the Complainant filed amendments to the Complaint to include the underlying registrant on December 17, 2007, by email and in hard copy on January 3, 2008. On January 7, 2008, the Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for 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 Respondents of the Complaint, and the proceedings commenced on January 7, 2008. In accordance with the Rules, paragraph 5(a), the due date for the Response was January 27, 2008. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on January 31, 2008.
The Center appointed Douglas Clark as the sole panelist in this matter on February 11, 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.
4. Factual Background
The Complaint asserts the following facts which have not been disputed. Accordingly, consistent with the General Powers of the Panel as well as the Panel’s obligation under the Rules (see paragraphs 10(b) and 15(a)), the Panel treats these facts as sufficiently proved for the purposes of this Complaint.
The Complainant, Kamehameha Investment Corporation (“KIC”), has developed KEAUHOU as a resort community in Hawaii for nearly forty years. It is the owner of several trademarks for KEAUHOU and KEAUHOU BEACH RESORT in the United States of America, and has registered in its name a domain name incorporating these marks: . The Complainant has used this domain name as the primary URL for its website devoted to the advertising, marketing, and sale of its goods and services since 2000. Copies of the WhoIs record for the domain name, samples of the content of the website from October 16, 2007, as well as copies of the Complainant’s various trademarks were attached in the Complaint as Annexes 4, 5 and 6, respectively.
The website associated with the Respondents’ list links to other hotel reservations sites that compete with the Complainant and appears to have the goal of diverting consumers for the Respondents’ commercial gain. A sample of the content of this website from August 15, 2007 and November 13, 2007 were attached as Annex 7 in the Complaint.
The Respondents’ have not responded to any of the letters sent from either the Complainant or the Center.
5. Parties’ Contentions
A. Complainant
The Complainant asserts that is confusingly similar to the Complainant’s name and registered trademarks, KEAUHOU and KEAUHOU BEACH RESORT. The disputed domain name incorporates the KEAUHOU and KEAUHOU BEACH RESORT marks, merely swapping the word “hotel” for the word “resort”. The website associated with the Respondents’ domain name promotes goods and services similar to those provided by the Complainant yet unrelated to the KEAUHOU and KEAUHOU BEACH RESORT brands. Thus, the domain name at issue is similar, substantially identical in sound, sight and meaning to the Complainant’s mark.
The Complainant asserts that the Respondents have no rights or legitimate interests in respect of the disputed domain name because the Respondents are neither affiliated with the Complainant nor authorized to use the trademarks KEAUHOU or KEAUHOU BEACH RESORT. There is no evidence to demonstrate the Respondents’ use of, or preparation to use, the domain name in connection with a legitimate offering of good and services.
The Complainant further contends that the domain name was registered and is being used in bad faith. The presence of links on the website associated with the domain name, to competitive retail websites suggests the Respondents exploit and commercialize consumer confusion that arises from the domain name’s substantial similarities to the Complainant’s trademarks.
B. Respondents
The Respondents did not reply to the Complainant’s contentions.
6. Discussion and Findings
As the Center has communicated the Complaint to the contact details which the Registrar for the domain name has confirmed are the current contact details for the Respondents, the Panel is satisfied that the Center has taken all reasonable steps to bring the Complaint to the Respondents’ attention.
There being no Response, paragraphs 5(e) and 14(a) of the Rules direct the Panel, in the absence of exceptional circumstances, to decide the dispute on the basis of the Complaint. In accordance with paragraph 4(a) of the Policy, the evidence presented in the Complaint must prove that:
(i) the domain name is identical or confusingly similar to the Complainant’s trademark or service mark;
(ii) the Respondents have no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has shown that it is the owner of the KEAUHOU and KEAUHOU BEACH RESORT trademarks within the United States of America.
The domain name at issue incorporates the Complainant’s KEAUHOU mark and is substantially similar to the KEAUHOU BEACH RESORT trademark. The replacement of the word “resort” with “hotel”, a word commonly associated with “resort”, does not substantially distinguish the domain name from the Complainant’s trademark. Given these facts, the Panel finds the disputed domain to be confusingly similar to the Complainant’s trademarks.
Accordingly, the Complainant has satisfied the first element under paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
The Complainant has demonstrated its exclusive right to use KEAUHOU and KEAUHOU BEACH RESORT marks within the United States of America. As the Respondents’ domain name is substantially similar to the Complainant’s trademarks and the Respondents are neither affiliated with the Complainant nor authorized to use such marks, it is clear that the Respondents do not have any rights in respect of the disputed domain name.
No effort has been made by the Respondents to use the disputed domain name in connection with a bona fide offering of goods and services. The website associated with the Respondents’ domain name does not promote any goods or services in relation to the Complainant’s marks. Instead, visitors are presented with a collection of links to other websites, some of which offer services that compete with the Complainant. The Panel has not found any evidence to suggest the Respondents have a right or legitimate interest in the domain name.
Accordingly, the Panel finds that the Complainant has satisfied the second element under paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The confusingly similar nature of the disputed domain name and the Complainant’s trademark is likely to attract visitors intending to find information regarding the goods and services offered by the Complainant. This fact alone is not enough to demonstrate bad faith. However, the fact that the domain name is not being used in connection with any legitimate or on-going business activity makes the registration highly suspect. When the content of the website associated with the domain name, is taken into consideration, it is clear that registration of the disputed domain name was made to create a likelihood of confusion with the Complainant’s mark. The links to third party websites provides an avenue for monetization, and the inclusion of links to websites advertising or selling services similar to those offered under the KEAUHOU and KEAUHOU BEACH RESORT marks makes it obvious that the Respondents registration serves no other purpose than to exploit consumer confusion for commercial gain.
The Panel is satisfied that bad faith registration and use have been sufficiently established with respect to the domain name as defined in paragraph 4(b)(iv) of the Policy. Accordingly, the Panel concludes that the Complainant has satisfied the third element under paragraph 4(a) of the Policy.
7. Decision
In light of the findings above, the Panel orders that the domain name be transferred to the Complainant in accordance with paragraph 4(i) of the Policy and paragraph 15 of the Rules.
Douglas Clark
Sole Panelist
Dated: February 25, 2008
Full & Egal Universal Law Academy