The Complainant is Desarrollo Marina Vallarta, S.A. de C.V. of Guadalajara, Mexico, represented by Holland & Knight, LLP, United States of America.
The Respondent is Stacey Davis / Domains by Proxy, Inc., of Hawaii, United States of America and Arizona, United States of America, respectively. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 13, 2011. On May 16, 2011, the Center transmitted by email to GoD, Inc. a request for registrar verification in connection with the disputed domain name. On May 17, 2011, GoD, Inc. 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 May 24, 2011 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 May 26, 2011.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 31, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was June 20, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 22, 2011.
The Center appointed Michael J. Spence as the sole panelist in this matter on July 11, 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 is one of the largest and most well known of resort providers in Mexico. It has operated its business since the 1970s under a variety of trade marks involving the words “Mayan Resorts”. The Respondent has no connection with the Complainant. The Panel notes that the website at the disputed domain name, at the time of the submission of the Complaint consisted in a single image of a Hawaiian shirt in a closet with the header “Future home of something quite cool”, and which contains, at the time of this Decision, various links to websites offering services similar to those of the Complainant. The Respondent has also been sending emails from the disputed domain name to customers of the Complainant offering time share services in the name of the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant contends: that the disputed domain name is identical or confusingly similar to its trade marks; that the Respondent has no rights or legitimate interests in the disputed domain name, as it has not been authorized by the Complainant, it is not commonly known by the disputed domain name, and has made unfair use of the disputed domain name with the intent to tarnish the Complainant’s marks; and that the disputed domain name has been registered and is being used in bad faith as the Respondent apparently knew of the Complainant’s trade marks and registered the domain name for the purpose of disrupting the Complainant’s business. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant’s trade marks are well known in Mexico and more broadly. The disputed domain name contains the Complainant’s trade mark MAYAN RESORTS in its entirety. There can be no doubt that the disputed domain name is identical or confusingly similar to the Complainant’s trade mark.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy in relation to the disputed domain name. B. Rights or Legitimate Interests
It is for the Complainant to establish, at least prima facie, that the Respondent has no rights or legitimate interests in the disputed domain name (Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455; Belupo d.d. v. WACHEM d.o.o.,WIPO Case No. D2004-0110).
In this case, the likelihood of confusion is strong and the Respondent has not been authorized to use the trade mark MAYAN RESORTS as part of the disputed domain name. Moreover, considerable searches by the Complainant have not revealed that the Respondent has any ever operated, or made preparations to operate a legitimate business under the disputed domain name. The Panel notes that the current site merely consists in links to the sites of other traders operating in the same field of activity as the Complainant, which use does not constitute use for a legitimate business. The burden of production has therefore passed to the Respondent to establish that it does indeed have rights or legitimate interests in the disputed domain name, which burden it has not discharged.
The Panel therefore finds that the Complainant has established the second element of paragraph 4(a) of the Policy in relation to the disputed domain name. C. Registered and Used in Bad Faith
There is a strong likelihood of confusion created by the similarity of the Complainant’s trade marks and the disputed domain name. Further, the site operated under the disputed domain name is apparently seeking to exploit that confusion by diverting potential customers of the Complainant to other sites offering similar services. Finally, an intention to exploit that confusion is further evinced by the emails that have been sent from the disputed domain name. This evidence of an intention to exploit consumer confusion is evidence that the disputed domain name has been registered and is being used, in bad faith.
The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) of the Policy in relation to the disputed domain name. 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 domain name be transferred to the Complainant.
Michael J. Spence
Sole Panelist
Dated: July 24, 2011
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