The Complainant is Administradora Hotelera Dann S.A.S., Colombia, represented by PONS IP, Colombia.
The Respondent is Savvy Investments, LLC Privacy ID# 231197, United States of America (the “United States”). 2. The Domain Name and Registrar
The disputed domain name is registered with F (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 24, 2019. On April 25, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 25, 2019, 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 May 1, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 21, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 22, 2019.
The Center appointed Luiz E. Montaury Pimenta as the sole panelist in this matter on May 28, 2019. 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 is a Colombian hotel chain that owns several hotels in Colombia.
The Complainant is the owner of numerous trademarks consisting of or comprising the word DANN, including Colombian trademark registration no. 205686 for DANN, registered on September 29, 1997.
The disputed domain name was registered on June 2, 2014.
According to the evidence provided by the Complainant, the disputed domain name offers services in the hotel owned by the Complainant. According to the pictures provided by the Complainant the pictures extracted from the disputed domain name are the same as the pictures of the hotel owned by the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant argues that they are known by the expression “DANN”, registered as a trademark in Colombia.
The Complainant also argues that the disputed domain name reproduces the most distinctive element of the Complainant’s trademark registrations.
The Complainant alleges that the disputed domain name contains part of the Complainant’s trademark DANN in its entirety and simply adds the descriptive terms “hotel” and “cartagena” to the trademark.
The Complainant avers that the disputed domain name is confusingly similar to the Complainant’s trademark.
Further on, the Complainant argues that the Respondent should be considered as having no rights or legitimate interests in respect of the disputed domain name.
In addition to that, the Complainant notes that the Respondent is using the disputed domain name to offer of the same hotel that is owned by the Complainant and its organization.
The Complainant alleges that the Respondent intentionally attempts to attract Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s mark.
Finally, the Complainant seeks to have the disputed domain name be cancelled. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The Policy establishes three elements, specified in paragraph 4(a), that must be established by the Complainant to obtain relief. These elements are:
(i) The disputed domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name;
(iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Complainant owns various trademark registrations for DANN, HOTELES DANN AMABILIDAD Y EXCELENCIA, DANN FAN CLUB, DANN DC, and others in Colombia.
The disputed domain name incorporates the most distinctive element of the Complainant’s trademarks, with the mere addition of descriptive terms “hotel” and “cartagena”.
Also, the mere addition of the Top-Level Domain (“TLD”) “.com” to the disputed domain name does not constitute an element in the disputed domain name so as to avoid confusing similarity with the Complainant’s trademark for purposes of the Policy. Its use is purely for Internet technical registration purposes.
See The Coca-Cola Company v. David Jurkiewicz,WIPO Case No. DME2010-0008; Telecom Personal, S.A., v. NAMEZERO.COM, Inc.,WIPO Case No. D2001-0015; F. Hoffmann-La Roche AG v. Macalve e-dominios S.A.,WIPO Case No. D2006-0451; Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003; and Aktiebolaget Electrolux v. Jose Manuel,WIPO Case No. D2010-2031.
In view of all of the above, the Panel concludes that the disputed domain name is indeed confusingly similar to the Complainant’s registered trademarks.
Therefore, the Panel concludes that the Complainant has established the first condition of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
The Complainant has not authorized, licensed or permitted the Respondent to use the Complainant’s trademarks and there is no evidence that the Respondent has been or is commonly known by the disputed domain name or is using it in connection with a bona fide offering of goods or services or is making a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Complainant has established a prima facie case that none of the three circumstances establishing rights or legitimate interests mentioned above applies. As stressed by many UDRP panels, in such a case, the burden of production then shifts to the respondent to rebut the complainant’s prima facie case.
By not submitting a Response, the Respondent has failed to invoke any circumstance which could have demonstrated any rights or legitimate interests in the disputed domain name under paragraph 4(c) of the Policy.
Accordingly, the Panel finds that the Complainant has established element paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Considering the evidences provided by the Complainant, the Panel finds that it is impossible that the Respondent did not know of the Complainant and its trademarks, especially in light of the content of the website associated with the disputed domain name. Thus it is clear that the Respondent was aware of the Complainant’s trademark when it chose the disputed domain name. Bad faith can also be found where the Respondent “knew or should have known” of the Complainant’s trademark rights and nevertheless registered a domain name in which he had no rights or legitimate interests.
The Panel also finds that the likelihood of confusion created by the Respondent at directing Internet users to a website using pictures of the Complainant’s hotel.
The Panel agrees that the use of the disputed domain name with the intent to attract Internet users to the website for commercial gain by creating a likelihood of confusion with the Complainant’s trademarks shall constitute evidence of registration and use in bad faith (see e.g., Radio Globo SA v. Vanilla Limited,WIPO Case No. D2006-1557).
Therefore, the Panel finds that the Respondent registered and used the disputed domain name in bad faith and that the Complainant has established the third element of paragraph 4(a) 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 cancelled.
Luiz E. Montaury Pimenta
Sole Panelist
Date: June 11, 2019
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