WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION eDreams, Inc v. Salvia Corporation Case No. D2010-0639 1. The Parties
The Complainant is eDreams, Inc. of Delaware, United States of America, represented by UBILIBET, Spain.
The Respondent is Salvia Corporation of Latvia. 2. The Domain Name and Registrar
The disputed domain name is registered with DSTR Acquisition VII, LLC d/b/a D. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 22, 2010. On April 22, 2010, the Center transmitted by email to DSTR Acquisition VII, LLC d/b/a D a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar 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 30, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 20, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 21, 2010.
The Center appointed Knud Wallberg as the sole panelist in this matter on May 27, 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 began offering its e-commerce travel services in 2000 and offers a wide selection of flights, hotels and vacation packages for the Spanish, Italian, Portuguese, German, English and French markets.
The Complainant holds registered trademark rights to the name EDREAMS and variations thereof in Europe and owns several domain names incorporating the mark. 5. Parties' Contentions A. Complainant
(i) The disputed domain name is confusingly similar to the trademarks and the corporate name the Complainant owns
The disputed domain name is an obvious misspelling of the trademark EDREAMS intended to direct Internet users who misspell the Complainant's trademarks to Respondent's website.
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name
The Respondent, Salvia Corporation, has no rights or legitimate interests in the disputed domain name. The Respondent is not listed as holding any distinctive sign that uses the name “eDreams” or “edreamses'.
In addition, the Complainant has not granted the Respondent any licence or authorisation whatsoever to use its trade mark.
(iii) The disputed domain name was registered and is being used in bad faith
The Complainant states that the “eDreams” name is widely-known and widely recognized both nationally and internationally, to identify the leading on-line travel portal and that its trade marks are in widespread use. Considering this and the fact that the disputed domain name is an obvious purposeful misspelling of the trademark EDREAMS, the Complainant states that it is impossible that the Respondent carried out the registration of the disputed domain name being unaware of the existence of the Complainant as one of the European biggest on line travel agencies.
The disputed domain name is made up exclusively of the term “edreamses”. In the Complainant's view, the disputed domain name is a complete appropriation of a fantasy trade mark that belongs to the Complainant, so the Respondent cannot demonstrate any legitimate right whatsoever to use it.
The Complainant further claims that the notoriety of the “eDreams” name to identify the Complainant and its business confirms the view that registration of the disputed domain name could hardly be an action carried out by the Respondent in good faith. On the contrary, the disputed domain name construed by the Respondent must be for the sole purpose of capitalizing on misspelling the Complainant's trademark through the concept of typo-squatting, which is commonly and widely recognized as prima facie evidence of bad faith. Further, the Respondent has a history of being engaged in typo-squatting which strengthens the claim that the disputed domain name 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
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted, in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service 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 has been registered and is being used in bad faith.
Paragraph 4(a) of the Policy states that the burden of proving that all three elements are present lies with the Complainant. At the same time, in accordance with Paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules or any request from the Panel, the Panel shall draw such inferences there from as it considers appropriate. A. Identical or Confusingly Similar
The disputed domain name contains the Complainant's distinctive trademark EDREAMS, with the addition of an “e” and an “s” at the end and of the “.com” designation.
Since the inclusion of the gTLD denomination “.com” shall be disregarded for the purpose of these proceedings the Panel finds that the disputed domain name is confusingly similar to the Complainant's registered trademarks and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled. B. Respondent's Rights or Legitimate Interests
According to the Complaint, the Complainant has not licensed or otherwise permitted the Respondent to use its trademark or to apply for any domain name incorporating the mark.
The Panel is satisfied that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. The Respondent has not rebutted this by way of a formal Response or otherwise. The disputed domain name was registered several years after the Complainant first registered and started using its trade mark, and the Respondent is currently using the disputed domain name for a website that contains only links to other websites – among others links to websites that offers products and services that are similar to those offered by the Complainant. The Respondent thus could not credibly claim that the disputed domain name is intended to be used for any legitimate interests.
Consequently the Panel finds that the conditions in paragraph 4(a)(ii) of the Policy, with reference to paragraph 4(c) of the Policy, are also fulfilled. C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy requires the Complainant to prove both registration and use of the disputed domain name in bad faith. Paragraph 4(b)(i) of the Policy provides an example of circumstances which shall be evidence of registration and use in bad faith.
The Panel is satisfied under the specific circumstances of the present case that the Respondent was likely to have been aware of the Complainant, its EDREAMS mark and the Complainant's activities when registering the disputed domain name. Further, the Panel finds that the Respondent could not have been unaware of the fact that it chose a name which could attract Internet users in a manner that is likely to create confusion for such users.
The Panel therefore finds that the disputed domain name was registered in bad faith.
Further, at the time of rendering this decision the disputed domain name was used for a website that contained links to other websites including links related to various travel services. The Panel therefore finds that the Respondent by its registration and use of the disputed domain name, intentionally created a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of the disputed domain name with the purpose of attracting Internet users to the website for commercial gain. This finding is supported by the fact that the same conclusion has been reached against the Respondent in a number of other cases under the UDRP.
Accordingly, the Panel finds that the disputed domain name was registered and is being used in bad faith. The Complainant has proven element 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.
Knud Wallberg
Sole Panelist
Dated: June 10, 2010
Full & Egal Universal Law Academy