The Complainant is Mövenpick Holding AG of Baar, Switzerland, represented by BrandIT Legal AB, Sweden.
The Respondent is Domains For Sale and Lease of Jersey, United Kingdom of Great Britain and Northern Ireland ("UK"). 2. The Domain Name and Registrar
The disputed domain name is registered with OnlineNic, Inc. d/b/a China-C (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 1, 2015. On April 1, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 2, 2015, 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 10, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was April 30, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 1, 2015.
The Center appointed Nicoletta Colombo as the sole panelist in this matter on May 7, 2015. 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
Mövenpick Holding AG is a Swiss group of companies with global presence. Its core business is hospitality, with a focus on gastronomy, hotels, wine and premium branded products. The Complainant is present in Europe, the Middle East, Africa, Asia and North America. In 2013, the Complainant employed approximately 20,000 people world-wide. Mövenpick Hotels & Resorts is an international Swiss hotel chain which is part of the Complainant's group and counts among the 50 leading hotel groups in the world.
The Complainant owns several registrations for the word mark for MÖVENPICK, also in the UK where the Respondent lists its address of record, UK trademark registration UK0001387773A (registered in 1992), International Trademark Registration No. 865120 (registered in 2004) and International Trademark Registration No. 790391 (registered in 2002).
Due to extensive use, advertising, and revenue associated with its MÖVENPICK mark worldwide, the Complainant enjoys a high degree of renown around the world, including in the UK and Thailand.
The Complainant also owns various registrations for domain names that include its registered MÖVENPICK mark, including , registered in 2002; registered in 2011 and registered in 1998.
The disputed domain name was registered on May 7, 2007, and lists numerous hotels located in Thailand which the customer can book. The majority of these hotels are not hotels owned by the Complainant, but by competitors of the Complainant. 5. Parties' Contentions A. Complainant
The Complainant contends that each of the three elements specified in paragraph 4(a) of the Policy are applicable to the disputed domain name.
The Complainant contends the following:
- the disputed domain name is confusingly similar to the Complainant's trademarks;
- the addition of the term "resort" does not lessen the confusing similarity between the disputed domain name and the Complainant's trademark;
- the Respondent has no rights or legitimate interests in the disputed domain name, has no connection or affiliation with Mövenpick and has not received any license or consent, express or implied, to use the MÖVENPICK trademark in a domain name or in any other manner;
- the Respondent has not been commonly known by the disputed domain name, the Respondent has no rights or legitimate interests in the MÖVENPICK trademark and there is no evidence that the Respondent has a history of using, or preparing to use, the disputed domain name or registered business names corresponding to the disputed domain name in connection with a bona fide offering of goods and services;
- at the time of the registration of the disputed domain name, the Respondent was surely aware of the trademark of the Complainant;
- the Respondent is also using the disputed domain name in bad faith. The web site lists numerous of hotels located in Thailand where which the customer can book. The majority of these hotels are not hotels owned by Complainant, but by competitors to Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has several trademark registrations for MÖVENPICK, which is also its company name. Therefore it has been proven that the Complainant has rights in the MÖVENPICK trademark.
The disputed domain name incorporates the word "Mövenpick" which constitutes the Complainant's trademark and its company name.
The only difference between the disputed domain name and the trademark of the Complainant is the addition of the generic term "resort". The addition of the mentioned word does not add a distinctive element to the disputed domain name and does not render it dissimilar to the trademark of the Complainant. It is well established that the addition of generic words to a trademark does not prevent confusing similarity in particular when such word recalls the activity of the owner of the trademark (see, e.g., Swarovski Aktiengesellschaft v. Ming Robot,WIPO Case No. D2012-1200; Swarovski Aktiengesellschaft v. flushy, flushy kitty,WIPO Case No. D2012-0898; Carlsberg A/S v. Personal / decohouse, decohouse,WIPO Case No. D2011-0972; BP p.l.c. v. Kang-Sungkun Portraits Production,WIPO Case No. D2001-1097; Rolls-Royce PLC v. Hallofpain,WIPO Case No. D2000-1709; and The Nasdaq Stock Market, Inc. v. Vidudala Prasad,WIPO Case No. D2001-1493).
Additionally, the Panel may disregard, when analyzing the identity or similarity, the suffix - in this case ".com" - because it is a necessary component of the disputed domain name and does not in this case give any distinctiveness (see e.g., Crédit Industriel et Commercial SA v. Name Privacy,WIPO Case No. D2005-0457).
There are numerous UDRP decisions stating that confusing similarity, for the purposes of the Policy, is generally established inter alia when a domain name wholly incorporates a complainant's mark and only adds a generic word along with it (see e.g., F. Hoffmann-La Roche AG v. Bobik Marley,WIPO Case No. D2007-0694; Deceininck NV, Thyssen Polymer GmbH v. Beloussov Dimitriy, WIPO Case No. D2007-0347; Société des Bains de Mer et du Cercle des Etrangers à Monaco v. LaPorte Holdings, LLC.,WIPO Case No. D2005-0526).
Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark. B. Rights or Legitimate Interests
The Respondent has not filed any response in this case. There is a prima facie case made by the evidence provided by the Complainant to the Panel that the Respondent has no rights or legitimate interests in the disputed domain name (Société des Bains de Mer et du Cercle des Etrangers à Monaco v. Grande Media,WIPO Case No. D2007-0840; and UPIB, Inc. v. Texas Internet,WIPO Case No. D2004-0073).
Moreover, the Complainant has not licensed or otherwise permitted or authorized the Respondent to use its trademark MÖVENPICK, nor has the Respondent been authorized to register and use the disputed domain name.
There is no information as to the business activity of the Respondent that would justify the registration and the use of the disputed domain name. The disputed domain name lists numerous hotels located in Thailand which the customer can book. The majority of these hotels are not hotels owned by the Complainant, but by competitors of the Complainant.
Under these circumstances, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
Based on the evidence presented by the Complainant, the Panel considers that the Respondent registered and is using the disputed domain name in bad faith.
As sufficient evidence of registration in bad faith, the Panel finds that the Respondent registered the disputed domain name (which corresponds to a widely known trademark with the addition of the generic term "resort") most probably with knowledge of the Complainant's rights. The Complainant's trademark is for sure well known also in the UK, where the Respondent seems to be located, and in Thailand, where the possible targeted customers of the website at the disputed domain name reside. Therefore, only someone who was familiar with the Complainant's trademark would have registered the confusingly similar disputed domain name (see Aventis, Aventis Pharma SA. v. John Smith,WIPO Case No. D2004-0850; AT&T Corp. v. Xinzhiyuan Management Consulting Co., Ltd.,WIPO Case No. DCC2004-0001; British Sky Broadcasting Group plc, v. Mr. Pablo Merino and Sky Services S.A,WIPO Case No. D2004-0131; Deutsche Telekom AG v. Britt Cordon,WIPO Case No. D2004-0487).
There is no information as to the business activity of the Respondent that would justify the registration and the use of the disputed domain name; nor is there evidence of any rights or legitimate interests in the disputed domain name by the Respondent. The Panel believes that, in the absence of any rights or legitimate interests and in the absence of any contrary evidence from the Respondent, the Respondent's registration of the disputed domain name confusingly similar to the Complainant's trademark was done in bad faith (see Accor v. Howell Edwin,WIPO Case No. D2005-0980; Ferrero S.p.A. v. Publinord S.r.l.,WIPO Case No. D2002-0395; Banca Sella S.p.A. v. Mr. Paolo Parente,WIPO Case No. D2000-1157; Parfums Christian Dior v. Javier Garcia Quintas and C,WIPO Case No. D2000-0226).
The disputed domain name lists numerous hotels located in Thailand where the customer can book and the majority of these hotels are not hotels owned by the Complainant, but by competitors of the Complainant.
The Panel is of the opinion that the Respondent has registered the disputed domain name with the intent to profit from the reputation of the famous trademark of the Complainant to attempt to attract, for commercial gain, Internet users to a website that offer hospitality services in competition with the Complainant, by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of the website (see Swarovski Aktiengesellschaft v. putian coco kiss,WIPO Case No. DCC2012-0001: "By registering and using the disputed domain name incorporating the well-known and well-established registered trademark SWAROVSKI, the effect is to mislead Internet users and consumers into thinking that the Respondent is, in some way or another, connected to, sponsored by or affiliated with the Complainant and its business; or that the Respondent's activities are approved or endorsed by the Complainant. None of which the Panel can find, on the basis of the record in the Case File, is, in fact, the situation. Such misleading consequences, in the view of the Panel, are indicative of bad faith on the part of the Respondent"; and Six Continents Hotels, Inc. v. TRANSLINER CONSULTANTS,WIPO Case No. D2008-0502 finding no rights or legitimate interests where "it appears that Respondent has used the disputed Domain Name to direct consumers to websites that offered hospitality services in competition with Complainant").
Taken together with the fact that the Respondent has not filed any Response in this proceeding in support of any good faith registration or use, the Panel believes that the Complainant has demonstrated that the disputed domain name has been registered and is being used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Nicoletta Colombo
Sole Panelist
Date: May 19, 2015
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