The Complainant is Société Anonyme des Bains de Mer et du Cercle des Etrangers à Monaco, Monaco, represented by De Gaulle Fleurance & Associés, France.
The Respondent is WhoisGuard Protected / WhoisGuard, Inc., Panama / Json Werl, United Kingdom. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 25, 2021. On March 25, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 25, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 26, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 31, 2021. The Center verified that the Complaint together with 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 1, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 21, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 22, 2021. The Center appointed Christian Gassauer-Fleissner as the sole panelist in this matter on April 29, 2021. 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 was founded on April 6, 1863, and employs today almost 3,000 people and is the largest employer in Monaco. The Complainant is the sole corporation with the state permission to operate casinos in Monaco. The Casino de Monte-Carlo is the most famous of the Complainant’s venues. The Complainant also runs a number of hotels, spas and entertainment venues such as nightclubs, restaurants and bars, as well as other products and services including casino and gaming, nightclub services, sports activities and cultural activities. The Complainant owns the following trademark registration HOTEL HERMITAGE – MONTE-CARLO No. R01.22310. The disputed domain name was registered on March 7, 2021. It currently does not resolve to an active website. 5. Parties’ Contentions A. Complainant The Complainant asserts that the disputed domain name is identical to its HOTEL HERMITAGE – MONTE-CARLO trademark. The Complainant further asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since the Respondent is not commonly known by the disputed domain name and the Respondent is not licensed, authorized or permitted to register domain names incorporating the Complainant’s trademarks. The Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith in view of that the disputed domain name is clearly designed to attract Internet users looking for the mark of the Complaint by using a domain containing a sign identical to the Complainant’s trademarks. The Complainant requests transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 15(a) of the Rules requires that the Panel’s decision be made “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”. It has been a consensus view in previous UDRP decisions that a respondent’s default (i.e., failure to submit a response) would not by itself mean that the Complainant is deemed to have prevailed; a respondent’s default is not necessarily an admission that the complainant’s claims are true (See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)). A complainant must evidence each of the three elements required by paragraph 4(a) of the Policy in order to succeed on the complaint, namely that: (i) the disputed domain name is identical or confusingly similar to a 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; and (iii) the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Panel finds that the disputed domain name is identical to the Complainant’s HOTEL HERMITAGE – MONTE-CARLO mark, in which the Complainant has established rights through registration. The disputed domain name consists of the HOTEL HERMITAGE – MONTE-CARLO mark and the generic Top-Level Domain (“gTLD”) “.com”. gTLDs are generally disregarded when evaluating the identity or similarity of the Complainant’s mark to the disputed domain name under paragraph 4(a)(i) of the Policy, irrespective of any ordinary meaning that might be ascribed to the gTLD (see section 1.11 of the WIPO Overview 3.0). Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests While the overall burden of proof in UDRP proceedings is on the Complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (see section 2.1 of the WIPO Overview 3.0). Based on the evidence provided by the Complainant, the Panel concludes that the Respondent was aware of the Complainant and had the Complainant’s HOTEL HERMITAGE – MONTE-CARLO mark in mind when registering the disputed domain name. The disputed domain name is identical to the Complainant’s distinctive HOTEL HERMITAGE – MONTE-CARLO mark, therefore most likely aims to attract Internet users searching for the Complainant’s domain name. The disputed domain currently does not resolve to an active website. Based on the evidence provided by the Complainant, the Respondent has used the domain name to create at least one scam email address: office@hotelhermitage-montecarlo.com and used that email address to send emails requesting payments from customers of Complainant. The Panel therefore concludes that the Respondent has no legitimate interest or bona fide use of the disputed domain name, but was rather acting in bad faith. The Complainant therefore made a prima facie case that the Respondent lacks rights or legitimate interests to which the Respondent failed to respond. Accordingly, the Panel finds the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Panel notes that the Complainant’s services are prominently displayed on the Internet. The fact that the disputed domain name is identical to the Complainant’s HOTEL HERMITAGE – MONTE-CARLO mark and was registered several years after the registration of the Complainant’s trademark demonstrates in view of the Panel that the Respondent knew of the Complainant’s HOTEL HERMITAGE – MONTE-CARLO trademark when registering the disputed domain name. Based on the evidence provided by the Complainant, the Respondent has used the domain name to create at least one scam email address: office@hotelhermitage-montecarlo.com and used that email address to send emails requesting payments from customers of Complainant. The Panel therefore concludes that the Respondent has no legitimate interest or bona fide use of the disputed domain name, but was rather acting in bad faith. The fact that the disputed domain name does not resolve to an active website is further evidence that the sole purpose of the registration of the disputed domain name was to serve as a tool in an email scam. Panels have held that the use of a domain name for purposes other than to host a website may constitute bad faith. Such purposes include sending email, phishing, identity theft, or malware distribution. Many such cases involve the respondent’s use of the domain name to send deceptive emails, e.g., to obtain sensitive or confidential personal information from prospective job applicants, or to solicit payment of fraudulent invoices by the complainant’s actual or prospective customers. The phishing practice used by the Respondent is clearly indicative of bad faith on the part of Respondent. For these reasons, the Panel considers that the Respondent’s conduct constitutes bad faith registration and use of the disputed domain name. Accordingly, the Panel finds that the Complainant has satisfied the requirements of 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, Christian Gassauer-Fleissner
Sole Panelist
Date: May 13, 2021
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