The Complainant is Miss Universe L.P. LLLP of New York, United States of America, represented by Kelley Drye & Warren, LLP, United States.
The Respondent is Abon Hazarika of New Delhi, India. 2. The Domain Name and Registrar
The disputed domain name is registered with OnlineNic, Inc. d/b/a China-C. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 2, 2010. On December 3, 2010, the Center transmitted by email to OnlineNic, Inc. d/b/a China-C a request for registrar verification in connection with the disputed domain name. On December 7, 2010, OnlineNic, Inc. d/b/a China-C 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, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 4, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 10, 2011.
The Center appointed Adam Samuel as the sole panelist in this matter on January 14, 2011. 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 organizes beauty pageants annually where women from around the world compete for the title MISS UNIVERSE. The Complainant owns the US trademark number 1,597,876, registered on May 22, 1990. The disputed domain name was registered on March 23, 2003. 5. Parties’ Contentions A. Complainant
This section sets out the Complainants’ contentions with which the Panel may or may not agree.
The disputed domain name is confusingly similar to the Complainant’s well known and distinctive trademark. It incorporates the entirety of the Complainant's mark and only adds the generic terms "escort" and ".com". Such additions are not sufficient to avoid a finding of confusingly similarity. In fact, "it is well-established by previous UDRP panel decisions that a domain name incorporating a distinctive trademark[...]in its entirety creates sufficient similarity between the mark and the domain name as to render it confusingly similar.”
The Respondent has no rights or legitimate interests in the disputed domain name. It is not the trade name or company name of the Respondent. The Respondent is not commonly known by that name, and the name does not hear any legitimate relationship to the business of the Respondent. The Respondent is similarly not a licensee of the Complainant and is not otherwise authorized to use the Complainant's MISS UNIVERSE mark.
By registering a domain name that incorporates the entirety of the Complainant's famous MISS UNIVERSE mark, the Respondent's sole intention was to benefit financially from the renown associated with the Complainant's trademark by misleadingly diverting consumers and tarnishing the Complainant's trademark. The website associated with the disputed domain name offers escort and erotic pleasure services in exchange for money. The Respondent's unauthorized use of a photograph of the Complainant's MISS UNIVERSE contestants on the website associated with the disputed domain name bolsters the false impression that its services are offered by these contestants or are otherwise related to the Complainant's famous mark and pageants.
The Respondent must have been aware of the Complainant's rights in the MISS UNIVERSE mark when registering the disputed domain name, particularly as the website associated with the domain name includes a photograph of contestants of the Complainant's MISS UNIVERSE pageant. Knowledge can also be inferred based upon the fame and long-standing use of the Complainant's MISS UNIVERSE mark. By including the entirety of the Complainant's famous mark in the disputed domain name, the Respondent clearly intended to attract Internet users and capitalize on the goodwill of the Complainant's famous mark and its beautiful pageant contestants and titleholders for its own commercial gain which constitutes bad faith. Registration of a domain name incorporating another's mark and use of that domain name for a pornographic website has been widely held to be registration and use in bad faith. By linking the Complainant's famous mark to its website offering escort and erotic pleasure services, the Respondent is tarnishing the Complainant's mark. The Respondent is creating a negative association with the Complainant and damages its public reputation. The Respondent's bad faith is also evidenced by its failure to respond to repeated communications from the Complainant concerning the alleged trademark infringement. and its deliberate attempt to conceal its true identity. The Respondent provided false WhoIs information to the Registrar when registering the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Under the Policy, the Complainant must prove that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which it 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. A. Identical or Confusingly Similar
The Complainant owns the well-known US trademark MISS UNIVERSE. The disputed domain name consists of this, the generic word “escort” and the standard suffix “.com”. The addition of generic words particularly to well-known trademarks does not affect the confusing similarity between the disputed domain name and the Complainant’s trademark.
In Six Continents Hotels, Inc. v. Jan Pavlik,WIPO Case No. D2007-0472, the Panel, faced with the addition of the word “escort” and the suffix “.com” to two well-known trademarks involved in the hotel trade, said:
“This Panel concurs with the opinion of several prior WIPO UDRP panels which have held that, when a domain name wholly incorporates a complainant’s registered mark, that is sufficient to establish confusing similarity for purposes of the Policy.[…]
That is particularly true when the registered mark is entitled to a high level of protection due to its fame and notoriety[…]The Panel also concurs with the finding of previous WIPO UDRP panels that the addition of the word “escort” in a domain name is not sufficient to avoid a finding of confusing similarity to the relevant mark. In fact, the Complainant’s HOLIDAY INN and CROWNE PLAZA brands are used in connection with hotels worldwide. Rather than distinguishing the disputed domain name from Complainant’s marks, the addition of “escort” word increases the likelihood of confusion in the mind of the consumer and Internet user. “
For the same reasons, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met in this case. B. Rights or Legitimate Interests
The Respondent is not called “Miss Universe” or anything similar and does not appear to trade under that or any related name. There is no evidence that the Complainant has authorized the Respondent to use its trademark. The Respondent has never asserted any rights or legitimate interests in that name or replied to the Complainant’s correspondence on the subject. For these reasons, on the basis of the available record, notably the absence of a Response, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
The Panel finds that the Complainant’s trademark is well known and the Respondent clearly knew about it before the Complaint was made. The website to which the domain name resolves shows a picture of Miss Universe contestants clearly identified as such being used to promote the Respondent’s female escort business. The trademark was registered thirteen years before the disputed domain name was registered. In this Panel’s view, it is impossible, at least without a Response to the Complaint, to identify a reason why the Respondent registered the disputed domain name other than to attract business or Internet users to its site who were looking for a site connected to the Complainant’s’ trademark or business.
The only explanation of what has happened is that the Respondent’s motive in registering and using the sites seems to be either simply to disrupt the Complainants’ relationship with its customers or potential customers by tarnishing its trademark, attempt to attract Internet users for potential gain or persuade the Complainants to buy the disputed domain name from it for an amount in excess of the Respondent’s out-of-pocket expenses. These all constitute evidence of registration and use in bad faith.
In the circumstances, it is unnecessary to deal with the Complainants’ other arguments in this case. The Panel concludes that the disputed domain name was 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.
Adam Samuel
Sole Panelist
Dated: January 21, 2011
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