WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Levantur, S.A. v. Orange Creative Solutions, Inc. Case No. D2010-0521 1. The Parties
The Complainant is Levantur, S.A. of Palma de Mallorca, Spain, represented by Landwell, PricewaterhouseCoopers, Spain.
The Respondent is Orange Creative Solutions, Inc. of Keego Harbor, Michigan, United States of America. 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 April 6, 2010. On April 7, 2010, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On April 8, 2010, 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 April 9, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 29, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 3, 2010.
The Center appointed Andrew F. Christie as the sole panelist in this matter on May 12, 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 corporate entity that commenced operations in 1977 and is involved in (i) the purchase of moveable and immoveable property to be traded on; (ii) the design, promotion and execution of urban works; (iii) the expansion of the hotel industry by operating hotels and apartments; (iv) the provision of corporate services to other companies; and (v) all types of services to establish and develop the tourist industry. It forms part of the Pinero Group, one of the leading groups of the Spanish tourism industry, founded in 1975.
“Bahia Principe” is a chain of hotels operated by the Complainant since 1995. The chain currently consists of 18 hotels, with plans for further expansion. The “Gran Bahia Principe” hotels are 5 star facilities and the “Bahia Principe” hotels are 4 star facilities. The domain name was registered by the Complainant in 1997, and the website to which it resolves is used to generate most of its hotel reservations and sales.
The Complainant applied for the Spanish trademark BAHIA PRINCIPE CLUBS & RESORTS on March 10, 1998; the United States of America trademark BAHIA PRINCIPE CLUBS & RESORTS on August 20, 2001; the Community trademark BAHIA PRINCIPE CLUBS & RESORTS on May 25, 2007; and the Community trademark BAHIA PRINCIPE GOLF RESORT on July 27, 2007. Each of these trademark applications has been granted and is in force.
The disputed domain name was registered on January 1, 2010. It is used as the URL for a website containing a lengthy criticism of an alleged stay at one of the Bahia Principe hotels in December 2009, and information about other hotels in the chain and vacation activities in the region of those hotels. 5. Parties' Contentions A. Complainant
The Complainant contends the disputed domain name is confusingly similar to its trademarks because it contains the distinctive component of its trademarks: the words “bahia” and “principe”. The addition of the words “gran” and “hotels” does not provide distinctiveness as “gran” means “big” which is an adjective describing the hotel, and “hotels” is just a descriptive word that refers to the Complainant's business. “Gran” is also the denomination the Complainant uses to refer to its five star hotels. The significant part of the trademarks is the words “bahia principe” and it is under this abbreviated name that the Complainant operates. The other words in the trademarks (“clubs & resorts”, and “golf resort” respectively) merely describe the type of business. The Respondent has not been authorised or licensed to use the trademarks.
The disputed domain name resolves to a website which can confuse users who are seeking to book any of the Bahia Principe hotels as it contains information and data about three hotels the Complainant owns in Mexico. The Internet user will probably consider the disputed domain name has its origin in the Complainant's company or that it has a kind of commercial relationship with it.
The Complainant contends the Respondent has no rights or legitimate interests in the disputed domain name because (i) it has not registered any trademark which legitimizes its use; (ii) it does not have any type of identity or corporate name which is similar; and (iii) it has not been authorized to use the name by the Complainant. The Respondent cannot claim to not know about the Complainant's name and trademarks because the website to which the disputed domain name resolves contains an explanation of the Respondent's holiday in the Gran Bahia Principe Coba hotel. The Respondent owns a business whose main activity is designing websites for other companies, which demonstrates the Respondent is not commonly known by the disputed domain name.
The Complainant contends the Respondent has registered and used the disputed domain name in bad faith because on the main page of the website to which the disputed domain name resolves, right below the title “Gran Bahia Principe Hotels”, is the subtitle “Gran Bahia Principe – Awesome Property, Horrible Service”, which is trying to criticize and discredit the services of the Complainant, and disturb the main aim of the Complainant's website: the online booking services. The logo of the Complainant's trademark GRAN BAHIA CLUBS & RESORTS is shown without the Complainant's consent, and further proves the Respondent's intention to confuse potential Internet users. B. Respondent
The Respondent did not reply to the Complainant's contentions 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name incorporates the two distinctive words of the Complainant's trademarks – “bahia” and “principe” – and adds the descriptive words “gran” (big) and “hotels” (the type of business). The addition of these two words does not lessen the inevitable confusion of the domain name with the Complainant's trademark that results from the disputed domain name's incorporation of the two distinctive words of the Complainant's trademark. Accordingly, this Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Respondent is not a licensee of, or otherwise affiliated with, the Complainant. As was stated in Monty and Pat Roberts, Inc. v. Bill Keith,WIPO Case No. D2000-0299, “… the right to express one's views is not the same as the right to use another's name to identify one's self as the source of those views”. This Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The Complainant has conducted a substantial business in the hotel industry for 15 years under trademarks that contain the words “bahia principe”. The Respondent registered the disputed domain name on January 1, 2010, just six days after an alleged visit to one of the Complainant's hotels. Thus, it is clear that the Respondent was aware of the Complainant's trademarks at the time it registered the disputed domain name. This Panel's observation of the main page of the website to which the disputed domain name resolves discloses that it contains not only a detailed criticism of the Respondent's experience at one the Complainant's hotels, but also substantial advertising (by Google) for a wide range of hotels and other forms of vacation accommodation. This Panel is persuaded that the Respondent has used the disputed domain name with the intention of attracting Internet users to its website, by creating a likelihood of confusion with the Complainant's trademarks, for the purposes of disseminating its criticism of the Complainant's business and generating revenue from advertising. For these reasons, this Panel finds that the disputed domain name has been registered and is being used in bad faith. 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.
Andrew F. Christie
Sole Panelist
Dated: May 26, 2010
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