The Complainant is Francisco Ramón Bulnes Malo of Cabo San Lucas, Mexico, represented by Cayad, S.C., Mexico.
The Respondent is Tom, Rancho San Lucas of Los Cabos, Mexico. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 15, 2018. On October 16, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 17, 2018, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 26, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 15, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 16, 2018.
The Center appointed Martin Michaus-Romero as the sole panelist in this matter on November 21, 2018. 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
1. The Complainant is the founder, CEO and co-owner of Centro de Promociones Los Cabos San Lucas, S.A. de C.V., a hotel group incorporated since 1973.
2. It operates: a) five hotels; Playa Grande, Solmar, Grand Solmar, The Ridge and Quintana del Sol, comprising more than 1,000 rooms; b) as a timeshare sales company, and it is currently venturing in real estate development; c) many fine restaurants in the area.
3. The Complainant started in June 1973 with the Solmar Hotel with a total of 75 rooms having as a main market American and Canadian tourism, along with the sport fishing fleet Solmar which was the driving force for tourism in Los Cabos.
4. The Complainant in 1983, expanded to other tourism sectors creating companies for the provision of car rental services, external and sport fishing. In 2000 it built a business class category hotel in the center of Cabo San Lucas. It operates under the name “Hotel Quinta del Sol by Solmar” and in 2010 the Complainant built a new luxury hotel called “Hotel Grand Solmar Land’s End.”
5. The Complainant is the owner of the land of Rancho San Lucas and is the main share-holder and Chairman of the board of the Centro de Promociones Los Cabos San Lucas, S.A. de C.V. (owner of the hotel and golf club at Rancho San Lucas, Promotora Solmar, S.A. de C.V. (hotel operator), and Rancho Real State, S.A. de C.V. (the real state developer of the residences at Rancho San Lucas).
6. The Complainant is the owner of the following domain names: ; ; ; ; ; .
7. The Complainant is the owner of the following trademark registrations granted by the Mexican Institute of Industrial Property in International Classes No. 36 and 43 for hotel and restaurant services: a) Reg. No. 1572467 RSL RANCHO SAN LUCAS LOS CABOS (and Design), registered on September 11, 2015; b) 1485775, RANCHO SAN LUCAS LOS CABOS (and Design), registered on October 6, 2014; c) 1666015, THE VILLAS AT RANCHO SAN LUCAS (and Design), registered on August 18, 2016; d) 946234 RANCHO SAN LUCAS, registered on July 28, 2006.
8. The Respondent registered the disputed domain name on August 4, 2017. The disputed domain name does not resolve to an active website. According to evidence submitted by the Complainant, the Respondent has used the disputed domain name to send emails to the Complainant’s clients representing itself as the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant states in its Complaint that the Respondent:
1. Registered the disputed domain name , which is confusingly similar to the RANCHO SAN LUCAS mark, without the Complainant’s knowledge or authorization.
2. Has registered the disputed domain name , which includes and reproduces the RANCHO SAN LUCAS trademarks, to create confusion in the consumers.
3. The Respondent’s use of the disputed domain name in a phishing attack which involved sending fake proposals to the Complainant’s costumers via email from the address “[...]@” and inserting a blatant and unauthorized reproduction of a registered trademark owned by the Complainant, RANCHO SAN LUCAS LOS CABOS and design reg. No. 1572467 which created the appearance of being sent by the Complainant.
In summary, in its Complaint, the Complainant asserts that the disputed domain name is confusingly similar to its trademarks. The Respondent has no rights or legitimate interests in the disputed domain name, which was registered and is used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Considering that the Respondent did not reply to the Complainant’s contentions, in order to determine whether the Complainant has met its burden as stated in paragraph 4(a) of the Policy, the Panel bases its Decision on the statements and documents submitted and in accordance with the Policy and the Rules:
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following: (i) that the disputed domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant has submitted evidence of its rights in the RSL RANCHO SAN LUCAS LOS CABOS, RANCHO SAN LUCAS LOS CABOS, THE VILLAS AT RANCHO SAN LUCAS, RANCHO SAN LUCAS trademarks. The disputed domain name is confusingly similar to the Complainant’s RANCHO SAN LUCAS trademark. The disputed domain name reproduces the Complainant’s trademark RANCHO SAN LUCAS in its entirety with the addition of the term “cabo”. The addition of such term does not prevent a finding of confusingly similarity.
The generic Top-Level Domain (“gTLD”), “.com” can be disregarded for the assessment of the first element of the Policy.
The Panel finds that the Complainant satisfies paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Respondent has not received permission or authorization to use the Complainant’s trademark. The Respondent did not reply to the Complainant’s contentions, and therefore has not provided any evidence to demonstrate anything to the contrary. It should be pointed out that nothing in the available record indicates that the Respondent is an individual, business or corporation known by the name “Rancho Cabo San Lucas”. Furthermore, the Respondent is not using the disputed domain name for a bona fide offering of good or services, nor for a legitimate or noncommercial fair use that might give rise to rights or legitimate interests in the disputed domain name.
The Respondent sends emails from the email account associated with the disputed domain name to the Complainant’s clients using the Complainant’s trademark without authorization. Likewise, the Respondent performed phishing activities in an intent to fraudulently obtain personal information of the Complainant’s clients while using the Complainant’s trademark without license or authorization.
There is no evidence that the Respondent is commonly known by the disputed domain name or owned a trademark or is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Complainant satisfies paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
According to the evidence submitted by the Complainant, it is clear to the Panel that the registration and the use of the disputed domain name has been in bad faith, by including the RANCHO SAN LUCAS trademark, to intentionally attract Internet users for commercial gain. In this regard, the inclusion of the term “Rancho San Lucas” in the disputed domain name not only coincides with the Complainant’s trademark, but it also compounds the confusion among Internet users, who can be deceived or be led to believe, that the website and the disputed domain name are operated by the Complainant.
The Panel also notes that, in accordance with the evidence in the Complaint, the Respondent’s use of the disputed domain name leads to misperceptions as to the source, affiliation, or endorsement of the disputed domain name. The Respondent has demonstrated a vicious intent to capitalize on the goodwill of the Complainant’s trademark for the Respondent’s gain by sending emails to the Complainant’s clients with the intent to obtain personal information and/or payments. These activities constitute, in view of the Panel, clear evidence of use of the disputed domain name in bad faith.
The above creates a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation and/or endorsement of the Respondent’s website. This also negatively affects the Complainant’s online presence. See paragraph 4(b)(iv) of the Policy.
The Panel finds that the Complainant satisfies paragraph 4(a)(iii) of the Policy. 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.
Martin Michaus Romero
Sole Panelist
Date: December 3, 2018
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