WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Levantur, S.A. v. Belize Domain WHOIS Service Lt Case No. D2010-0250 1. The Parties
The Complainant is Levantur, S.A. of Palma de Mallorca, Spain, represented by Landwell, PricewaterhouseCoopers, Spain.
The Respondent is Belize Domain WHOIS Service Lt, Belize, Wisconsin, United States of America. 2. The Domain Name and Registrar
The disputed domain name is 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 February 18, 2010. On February 25, 2010, 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 name. On February 25, 2010, 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 and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an Amended Complaint on February 26, 2010. The Center verified that the Complaint together with the Amended 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 March 1, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 21, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 23, 2010.
The Center appointed Sir Ian Barker as the sole panelist in this matter on March 26, 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
The Complainant is a Spanish corporation which is part of the Piñero Group, one of the leading players in the Spanish tourist industry. The Complainant operates luxury hotels in Spain, Portugal, Mexico and the Dominican Republic. The names of several of its hotels begin with the expression Gran Bahía Príncipe. The names are completed by the addition of the location of the relevant hotel. One of these locations is the city of Tulum, Mexico.
The Complainant owns registered trademarks in Spain and the United States for the name BAHIA PRINCIPE CLUBS AND RESORTS in Class 42. The Spanish trademark is valid as from August 20, 1998 and the United States trademark is valid as from June 24, 2003.
The name Bahia Principe does not denote any geographical location. The word “gran” is simply Spanish for “big”.
The Complainant has also registered numerous domain names consisting of or including the words “bahia principe”. The Complainant has advertised widely its hotel and travel services in various media. The expression BAHIA PRINCIPE is used extensively in that advertising.
The Complainant has not authorised the Respondent to use its service marks.
The disputed domain name was registered on August 3, 2005. The disputed domain name points to a website which offers hotel services, including services offered by companies which compete with the Complainant.
The Complainant was successful in two previous administrative proceedings under the Policy against the same Respondent. The Complainant succeeded in obtaining orders for the transfer to it of the domain names, (LEGO Juris A/S v. Deng Yi Xia, La Duzi and Hu Li,WIPO Case No. D2009-0858) and (Levantur, S.A. v. Belize Domain WHOIS Service Lt, WIPO Case No. D2009-0605). In neither case did the Respondent file a response. 5. Parties' Contentions A. Complainant
The disputed domain name is confusingly similar to the Complainant's BAHIA PRINCIPE CLUBS AND RESORTS marks. The significant part of that mark is the expression BAHIA PRINCIPE by which the Complainant is known and recognised.
The Respondent has listed different BAHIA PRINCIPE hotels which indicate the location of the hotel after the words “bahia principe”.
The Complainant contends that in the present case the Respondent does not come within legitimate interests established in the Policy under paragraph 4(c). It does not use the disputed domain name in a legitimate or fair way. Nor is it commonly known by the disputed domain name.
The Respondent has not registered any trademark which legitimates the use of the disputed domain name. Nor does it have any identity or corporate name confusingly similar to the disputed domain name nor has it been authorised to use the name by the legitimate owner.
The Complainant further alleges that the disputed domain name has been registered in bad faith by the Respondent with the intention of obtaining economic benefit by attracting confused users to the website accessed by the disputed domain name.
It is not credible that the Respondent was unaware of the existence of the Complainant's trademarks, especially since the Complainant had registered numerous domain names including the words “bahia principe”.
The Respondent's website redirects visitors to other websites which offer hotel services of the types offered by the Complainant. The Respondent's intention has been to create confusion and so attract to the Respondent's website Internet users looking for the Complainant. B. Respondent
The Respondent did not file a response. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires that the complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the disputed domain name registered by the Respondent 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 name; and
(iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The dominant and distinctive word element in the Complainant's trademarks is BAHIA PRINCIPE. The addition of the geographic indicator “tulum” – the name of a Mexican city – fails to alleviate the confusion. There is a likelihood that Internet users will confuse the disputed domain name with the goods and services of the Complainant, particularly, since the Complainant operates a hotel at that city. The addition of the geographic indicator does nothing to alleviate confusion, rather it increases it.
The Panel concludes that the disputed domain name is confusingly similar to the Complainant's registered trademarks and that the requirements of the first limb of paragraph 4(a)(i) are fulfilled. B. Rights or Legitimate Interests
The Respondent has not filed any Response and has failed to show that it comes within any of the situations under paragraph 4(c) of the Policy.
The Complainant did not give it any rights to use its trademark in the disputed domain name.
Consequently, the Panel concludes the Respondent has no rights or legitimate interests and that the Complainant has fulfilled paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel is satisfied that the Respondent must have been aware of the Complainant's group of hotels when the disputed domain name was registered. The Respondent's track record of blatantly using the Complainant's trademark in domain names is shown by the previous WIPO UDRP decisions.
The Respondent could not have been unaware of the fact that it registered a name which could attract Internet users in a manner likely to cause confusion to users of the Internet. This is underlined by the fact that the disputed domain name is used for a website that contains information on and links to other sites which offer products and services similar to those offered by the Complainant.
The Panel, therefore, considers that the Respondent intentionally created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the disputed domain name for the purpose of attracting Internet users to the website for commercial gain. This situation is envisaged by paragraph 4(b)(iv) of the Policy.
Accordingly, the Complainant succeeds under paragraph 4(a)(iii) 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.
Sir Ian Barker
Sole Panelist
Dated: April 1, 2010
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