WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Viajes Iberojet, S.A. v. Reserved for Customers, MustN Case No. D2010-0802 1. The Parties
The Complainant is Viajes Iberojet, S.A. (“Complainant” or “Iberojet”) of Palma de Mallorca, Spain, represented by UBILIBET, Spain.
The Respondent is Reserved for Customers, MustN (“Respondent”) of Taipei, Taiwan, Province of China. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Moniker Online Services, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 19, 2010. On May 20, 2010, the Center transmitted to the Registrar by email a request for registrar verification in connection with the Domain Name. On the same date, the Registrar transmitted by email to the Center its verification response, disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on May 25, 2010, providing the registrant and contact information disclosed by the Registrar. The Complainant filed an Amended Complaint on the same date. The Center verified that the Complaint together with the amendment to 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 May 26, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was June 15, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on June 16, 2010.
The Center appointed Dana Haviland as the sole panelist in this matter on June 23, 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 Iberojet is a member of a group of affiliated companies (collectively, “Orizonia Corporación”), which provide wholesale and retail travel and tourism services through online websites and travel agencies. Iberojet is the tour operator of the wholesale division of Orizonia Corporación, and markets its products through over 11,000 sales points across Spain and Portugal, offering tours of Spain, the Caribbean, Brazil, Jamaica, Europe, and North Africa.
Since its creation in 1973, the Complainant has used the trademark IBEROJET (the “IBEROJET Mark”) in the operation of its business and owns numerous registrations of its IBEROJET Mark dating back to 1973. The Complainant has also registered numerous domain names incorporating its IBEROJET Mark.
The Domain Name was registered on November 25, 2002. 5. Parties' Contentions A. Complainant
The Complainant asserts that the Domain Name is identical or confusingly similar to a registered trademark in which it has rights, that the Respondent has no rights or legitimate interests in the Domain Name, and that the Respondent registered and used the Domain Name in bad faith. The Complainant requests transfer of the Domain Name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Under the Policy, in order to prevail, a complainant must prove the following three elements of a claim for transfer or cancellation of a respondent's domain name:
(i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) that the respondent has no rights or legitimate interests in the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Policy, paragraph 4(a). A. Identical or Confusingly Similar
The Complainant has provided evidence of its prior use and numerous registrations of the IBEROJET Mark under which it has operated its travel business for many years before the registration of the Domain Name. The Domain Name incorporates the Complainant's IBEROJET Mark in its entirety, adding only the “.com” suffix.
It is well established that the specific top level of a domain name such as “.com,” “.net” or “.org” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar. See Rollerblade, Inc. v. Chris McCrady,WIPO Case No. D2000-0429; Iconcard S.p.A. v. Linecom,WIPO Case No. D2005-1115.
The Panel finds that the Domain Name is identical to the IBEROJET Mark in which the Complainant has prior rights, and that the Complainant has thus established the first element of its claim, pursuant to paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent may establish rights or legitimate interests in a domain name by proof of any of the following non-exclusive list of circumstances:
(i) before any notice to the respondent of the dispute, the respondent used, or made demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organization) has been commonly known by the domain name, even if the respondent has not acquired trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Complainant states that it has not licensed or authorized the Respondent to use the Domain Name for any purpose and is not aware of any rights or legitimate interests of the Respondent in the Domain Name, and asserts that the Respondent has none.
As noted in CPP, Inc. v. Virtual Sky,WIPO Case No. D2006-0201, it is difficult for a complainant to prove the negative that a respondent does not have any rights or legitimate interests in a domain name in dispute. Thus, “where Complainant has asserted that Respondent has no rights or legitimate interests with respect to the domain name it is incumbent on Respondent to come forward with concrete evidence rebutting this assertion because this information is ‘uniquely within the knowledge and control of the respondent'”. Diebold, Incorporated v. Paul Terwilliger,WIPO Case No. D2003-0416. The Respondent has not responded to the Complaint to assert any right or interest in the Domain Name or present any evidence in opposition to the Complainant's assertions.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name, and that the Complainant has therefore satisfied the second element of its claim in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out, by way of example, four circumstances, each of which, if proven, shall be evidence of the registration and use of a domain name in bad faith for the purpose of paragraph 4 (a)(iii) above:
(i) circumstances indicating that the registrant has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the registrant's documented out-of-pocket costs directly related to the domain name; or
(ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or
(iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant's 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 registrant's website or location or of a product or service on the registrant's website or location.
As contended by the Complainant and evidenced by the Respondent's current website, the Respondent uses the Domain Name for a parking site with sponsored links to various commercial sites, including websites of companies apparently offering competing travel and tourism services to those of the Complainant.
In Deutsche Telekom AG v. Spiral Matrix,WIPO Case No. D2005-1145, the panel found that such activity constitutes bad faith: “As regards Respondent's use of the domain names, it appears that under the websites that are connected with the Respondent's domain names there is a list of sponsored links, thereby allowing the Respondent to make commercial gain. As stressed in Deutsche Telekom AG v. WWW Enterprise, Inc.,WIPO Case No. D2004-1078, ‘it is now a well known practice to display on a web page or search engine various links to other commercial websites, every link activated by an Internet user enables the host of the search engine to collect financial remuneration proportional to the number of connections.' Therefore, as affirmed by Complainant it seems evident that the Respondent has registered and used the domain names with the intent to attract to his websites Internet users looking for the products and services of Complainant, thereby making commercial gain by the sponsored links.” See also Asian World of Martial Arts Inc. v. Texas International Property Associates,WIPO Case No. D2007-1415 (use of a trademark in a domain name for pay-per-click landing page that included links to competitors of complainant was bad faith registration and use under paragraph 4(b)(iv) of the Policy).
The Panel finds on the evidence that the Respondent registered and used the Domain Name to attract Internet users to the Respondent's competing website for commercial gain by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the Respondent's website and the products sold through it. The evidence in this case is thus sufficient to establish the Respondent's bad faith registration and use of the Domain Name under paragraph 4(b)(iv) of the Policy. See Swarovski Aktiengesellschaft v. Transure Enterprise Ltd.,WIPO Case No. D2009-1638.
Further, as noted by the Complainant, the Respondent has a history of engaging in a pattern of registering domain names containing the trademarks of third parties and then using those domain names to direct web traffic to websites from which it derives benefit. Upon reviewing the list of WIPO UDRP decisions against the Respondent, the Panel has confirmed that the Respondent has displayed a pattern of conduct similar to the conduct complained of by the Complainant:
Auto-C, LLC v. MustN,WIPO Case No. D2004-0025; Banca Carige S.p.A. v. MustN, Lee Yi,WIPO Case No. D2004-0445; Playtex Marketing Corporation v. Reserved for Customers, MustN,WIPO Case No. D2005-1301; Rino Greggio Argenterie S.p.A. v. MustN,WIPO Case No. D2006-0961; Clinquest, Inc. v. MustN, WIPO Case No. D2006-1536; Mediaset S.p.A. v. MustN,WIPO Case No. D2008-0723; The Procter & Gamble Company, Tambrands Inc. v. Reserved for Customers, MustN,WIPO Case No. D2009-0944, Winwind Oy v. MustN; WIPO Case No. D2009-1389; and Mary Quant Cosmetics Japan Ltd. v. MustN, WIPO Case No. D2009-1608.
Such a pattern is strong evidence supporting a finding of bad faith. See Société BIC v. LaPorte Holdings, LLC,WIPO Case No. D2005-0342); FirstRand International Limited, FirstRand Bank Limited v. Virtual Sky,WIPO Case No. D2007-0701.
The Panel finds that the Complainant has shown the Respondent's bad faith registration and use of the Domain Name, satisfying the third element of its claim in accordance with paragraph 4(a)(iii) of the Policy.
In view of this finding, the Panel deems it unnecessary to consider the Complainant's assertions of bad faith pursuant to paragraph 4(b)(i) 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.
Dana Haviland
Sole Panelist
Dated: July 6, 2010
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