WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Mr. Tashi Pulger v. Shahista Alvi Case No. D2009-1696 1. The Parties
The Complainant is Mr. Tashi Pulger, West Bengal, India, represented by Stefan Daehler, Switzerland.
The Respondent is Shahista Alvi, Rajasthan, India. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 11, 2009. On December 11, 2009, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On December 14, 2009, GoD, Inc. 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” or “UDRP”), 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 December 15, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 4, 2010. The Response was filed with the Center on January 2, 2010.
The Center appointed Harini Narayanswamy as the sole panelist in this matter on January 13, 2010. 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
Darjeeling is the name of a well-known hill station in the Indian state of West Bengal. The Complainant Tashi T. Pulger is the son of late Lawang. T. Puger who built and established “the Bellevue Hotel Darjeeling” in 1971. Lawang. T. Puger passed away in the year 2007.
The disputed domain name was registered on June 25, 2002 and used by the Complainant and his father in connection with the Bellevue Hotel Darjeeling till 2008. Vishal Agrawat acquired the disputed domain name on August 7, 2008. It was transferred to Pankaj Gupta on June 10, 2009 and later transferred to Shahista Alvi, the current registrant and the Respondent in these proceedings, on November 25, 2009. 5. Parties' Contentions A. Complainant
The Complainant states he is managing and running the “The Bellevue Hotel Darjeeling”, after the demise of his father. A hand written undated document from the Councilor at the Darjeeling Municipality, Amar Lama certifies that:
“Bellevue Hotel is […] is a part of Darjeeling Properties Ltd. and was constructed in the year 1971 by Mr. Lawang Tenduk Pulger and had been successfully run under his supervision till his death on 10th July 2007. Henceforth, Bellevue Hotel is currently run by his son, Mr. Tashi Tenduk Pulger, who is his lawfully legal heir.”
The Complainant states he has not registered the term “Bellevue Hotel Darjeeling” as a trademark or service mark but claims common law rights in the name. He has filed Certificates of Enlistment issued by the Darjeeling Municipality for the years 2003-2007, which shows that his hotel business is operated under the trade or calling of “Hotel Belleview”.
The disputed domain name was registered and used by the Complainant's family in connection with their hotel business from June 2002 till 2008. On July 10, 2007, shortly after the disputed domain name was due for renewal, Lawang Pulger passed away. The Complainant, who took over the new duties for running of the hotel, missed the date for renewing the domain name in June 2008 and it was deleted.
After the grace period of forty-two days granted by the Registrar, the domain name was registered by Vishal Agrawat on August 7, 2008. He continued using the Complainant's website, but with minor changes like replacing photographs with “possibly copyrighted photographs” states the Complainant. The important change was the adding of numerous links pointing to websites unrelated to the “Bellevue Hotel Darjeeling”. The Complainant states Agrawat's intention was to use the website's excellent traffic and page rank for his business of Search Engine Optimization (SEO) and in doing so he mislead Internet users to believe the website belongs to the “Bellevue Hotel Darjeeling”.
In February 2009, the Complainant states his authorized representative approached Agrawat to negotiate for the transfer of the disputed domain name, which he flatly refused. In May 2009, the Complainant states, he initiated a first Complaint and a registrar lock was placed on the disputed domain name, but as the complaint was rejected for lack of documents and the registrar lock was removed on June 9, 2009. The very next day, on June 10, 2009, the disputed domain name was transferred to Panjak Gupta, even though Agrawat had refused its transfer to the Complainant. The Complainant through the Whois database found the email address for Panjak Gupta was given as “info@” and on further investigation it found that the domain name was held by Agrawat, therefore Agrawat was associated with Gupta.
In November 2009, a second complaint was initiated, by the Complainant and on receiving a copy of the complaint; the disputed domain name was transferred by Panjak Gupta to the present registrant, Shahista Alvi. The email address for the new registrant is given as “john.barkan@”. The Complainant states it found information that a John Barkan has misused Wikipedia for placement of hyperlinks to his own business and had directed the searcher to the website SEO Services Company based in Jaipur Rajasthan, the same company mentioned in Agrawat's message of February 15, 2009.
The Complainant states that the Respondent has no rights and legitimate interests in the disputed domain name as he has no relationship with the hotel business or with Darjeeling and none whatsoever with the “Bellevue Hotel Darjeeling”. The Complainant argues that the disputed domain name was acquired in bad faith and is being used in bad faith as the Respondent uses the disputed domain name's traffic and page ranking for his business of Search Engine Optimization (SEO), and for improving Respondent's websites ranking.
The Complainant states the Respondent acquired the disputed domain name for its “inherited” excellent ranking for major search engines and uses it to insert numerous links to third party sites which are camouflaged and embedded into the text, which is bad faith use as described under paragraph 4 (b)(iv) of the Policy. The links point to travel related sites and to fake websites instead of the Complainant's hotel. Further the website linked to the disputed domain name misleads Internet users by giving a wrong impression of the look and feel of the original hotel and the literacy of its management and staff. Users making bookings through the disputed domain name get a misleading message that states: “Thanks For your Inquiry We will get back to you at given email id with payment link if booking is available on that date. Director Bellevue Hotel.” These messages do not reach the management of the Complainant's hotel.
The Complainant states that he has registered an alternative domain name in 2008. Nonetheless, his business is being disrupted due to the Respondent's bad faith use of the disputed domain name and he accordingly requests for its transfer. B. Respondent
The Respondent requests the Panel to deny the remedy requested by the Complainant as there is no trademark or service mark issues here because the keyword, “Bellevue Hotel”, is a common name for hundreds of hotels all over the world. Within Darjeeling, itself, there are other Bellevue hotels called “olde Bellevue Hotel”, “Main Bellevue Hotel” and “New Bellevue Hotel”, and copies of webpages displaying the searches is provided as evidence.
Regarding rights and legitimate interest, the Respondent states Vishal Agrawat had “booked” the domain name from the registrar Godaddy in a legitimate way, but as he was busy with other work and lacked knowledge in hotel industry, he transferred the domain name to Pankaj Gupta , who then transferred it to the present registrant, the Respondent states that he therefore has full rights in respect of the disputed domain name. The Respondent goes on to state that the Complainant, Mr. Pulger has registered another domain name called and is running a successful website from this domain name.
Respondent states he has no bad faith intention as he has no intention to sell or transfer “this domain name to domain name owner and I have or my previous owners have any intension to transfer, selling or renting to complainant”. There are many hotels using the same name all over the world and there are no trademark issues, and in his words “I am not preventing complaint trademark, […] I have no intention to disrupting the business of competitor. [...] If you check links they those are not affiliated links and they are not relating to competitors and complaint source and trademark.” 6. Discussion and Findings
The Policy stipulates that the Complainant has to establish three factors under paragraph 4(a) to obtain the remedy of transfer of the disputed domain name.
(i) The disputed domain name is identical or confusingly similar to a mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name was registered and is being used in bad faith by the Respondent. A. Identical or Confusingly Similar
The first factor under paragraph 4(a) requires the Complainant to establish that the disputed domain name is identical or confusingly similar to a trademark in which it has rights.
The Complainant has provided evidence that the name “Bellevue Hotel” is used in connection with his hotel business. This is confirmed from the documents filed with the Complaint, a letter from the Councilor at the Darjeeling Municipality and Certificates of Enlistment issued by the Darjeeling Municipality. Although the supporting documentation filed by the Complainant could have been more comprehensive, the Panel accepts these documents and other evidence on record as supporting the Complainant's contention that he has used the name “Bellevue Hotel” in connection with his hotel business for a number of years. The Panel therefore finds for the purpose of the present Policy proceeding that the Complainant has common law trademark or service mark rights to the name “Bellevue Hotel” in connection with his hotel and that this hotel is located in Darjeeling.
Under the Policy, common law rights for trademarks or service marks that have not been registered can be protected, see Bennett Coleman & Co. Ltd v. Steven S Lalwani,WIPO Case No. D2000-0015. The Panel finds the Complainant and his family had registered and used the disputed domain name from June 2002 till 2008, which is indicated from the Internet Archive records. Furthermore, the Complainant has registered a domain name called . These facts, and the documents provided with the Complaint indicate the Complainant uses the name in commerce in connection with a legitimate business. Whether and to what extent the name has become a distinctive identifier of Complainant's business is a somewhat closer question on the present record but on balance, the Panel accepts this to be so. As is made clear from subsequent findings, the Panel is in any event satisfied that there was sufficient distinctiveness for the Respondent to have had the prospect of confusion with the Complainant's name and business in mind when it acquired the domain name following its deletion after six years of prior use by the Complainant.
The Panel finds the disputed domain name is confusingly similar to a name in which the Complainant has rights.
The Complainant has satisfied the first requirement of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
The second factor under paragraph 4(a) of the Policy requires the Complainant to make a prima facie showing that the Respondent lacks rights and legitimate interests in the domain name. See paragraph 2.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions.
The Complainant has asserted that the Respondent has no rights and legitimate interests in the disputed domain name as he has no relationship with the hotel business or with Darjeeling and none with the “Bellevue Hotel Darjeeling”. The Panel finds the Respondent has provided no evidence to show he uses the disputed domain name in connection with a bona fide offering of goods or that he has any business is commonly known by the disputed domain name. Neither is it the Respondent's case that the disputed domain name is being used for any legitimate non-commercial or fair-use purposes.
On the contrary, the Panel finds the Respondent seems to be admitting his lack of rights by referring to the Complainant as the “domain owner” in his response. Further the Panel finds the Respondent uses the disputed domain name to misdirect Internet traffic by placing links on the website linked to the disputed domain name that is confusingly similar to the Complainant's trade and business identifier.
Taking into consideration all these facts, the Panel is convinced that the Complainant has made a prima facie showing that the Respondent lacks rights and legitimate interests in the disputed domain name.
The Complainant has satisfied the second requirement of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith
The third factor under paragraph 4(a) of the Policy requires the Complainant to establish that the disputed domain name was registered and is being used in bad faith by the Respondent.
The registration or acquiring of a lapsed or deleted domain name that is confusingly similar to a name associated with the business of another and using the domain name to generate revenue by directing Internet users to the website of the competitors without regard for the possibility of third party rights in the domain name is inconsistent with good faith requirement under the Policy. See HSBC Finance Corporation v. Clear Blue Sky Inc. and Domain Manager,WIPO Case No. D2007-0062, and Nature et Decouvertes v. XB NetVentures Inc.,WIPO Case No. D2007-1305. Bad faith registration and use has been found when a respondent registers a lapsed domain name that a complainant had inadvertently failed to renew and uses it for redirecting Internet traffic for commercial gain. See E, Inc v. Ult. Search Inc.,WIPO Case No. D2001-1319.
The Panel finds the circumstances in the present case indicate that the Respondent has registered or acquired a domain name that had been previously registered and used by the Complainant for about six years, which lapsed due to non-renewal. The Respondent acquired the disputed domain name and uses it to place links to third party sites by embedding these links in the website content. Although the website appears to have content and does not look like a typical link farm type of website, the Panel's assessment is that it functions like a link farm due to the camouflaged links, the only difference being that users may be misled to think that the domain name and website belong to a legitimate business, and may not suspect it is a imposter website. In the Panel's considered opinion, the most likely explanation for the Respondent's acquisition and subsequent use of the disputed domain name is to capitalize on likely confusion with the “Bellevue Hotel” in Darjeeling. That is the name of Complainant's hotel in Darjeeling, and as noted the Complainant had for six previous years used the disputed domain name in connection with its hotel business. In light of that fact, and bearing in mind the Respondent's subsequent use of the disputed domain name, the Panel finds it difficult to believe that the Respondent was not aware of the evident prospect for confusion between the disputed domain name and the Complainant's “Bellevue Hotel” name and business.
Paragraph 4(b)(iv) of the Policy alludes to circumstances indicating bad faith registration and use of the domain name with the intent to attract Internet users to a website or other online location by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the Respondent's website. In the light of the preceding discussions and the Panel's findings, the Panel holds that the Respondent has registered the disputed domain name and uses it in a manner that constitutes bad faith registration and use as described under and paragraph 4(b)(iv) of the Policy.
The Complainant has satisfied the third requirement of paragraph 4(a) of the Policy. 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.
Harini Narayanswamy
Sole Panelist
Dated: January 27, 2010
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