WIPO

 

WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Amanresorts Limited v Access Bali Online

Case No. D2001-1083

 

1. The Parties

The Complainant is Amanresorts Limited, a company incorporated under the laws of Hong Kong, having its registered office at 3rd Floor, Kailey Tower, 16 Stanley Street, Central, Hong Kong.

The Respondent is Access Bali Online, having a place of business at Puri Taman Umadui B-21, Jalan Gunung Seputan, Denpasar Barat 80117, Bali, Indonesia.

 

2. The Domain Name and Registrar

The domain name in dispute is <amanresort.com>. The Registrar of the domain name as at the date of the Complaint is Tucows.com, Inc.

 

3. Procedural History

3.1 The Complaint was made pursuant to the Uniform Domain Name Dispute Resolution Policy approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") on October 24, 1999 (the "Policy"), in accordance with the Rules for Uniform Domain Name Dispute Resolution Policy, also approved by ICANN on October 24, 1999 (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy in effect as of December 1, 1999 (the "Supplemental Rules").

3.2 The Complaint was received by the WIPO Arbitration and Mediation Center (the "Center") by email on August 31, 2001, and in hard copy on September 3, 2001. The fees prescribed under the Supplemental Rules have been paid by the Complainant.

3.3 The Center sent the Complainant an "Acknowledgement of Receipt of Complaint" by email on September 4, 2001. The Center sent a request for verification to Tucows.com, Inc. on September 10, 2001, by email. The Registrar responded to the Centerís request on September 12, 2001, verifying:

- The Complaint had been received.

- The domain name <amanresort.com> is registered with Tucows Inc.

- The Respondent is the current registrant of the domain name in dispute.

- Respondentís contact details.

- The UDRP applies to the domain name.

- The domain name is currently on hold within the system.

3.4 The Center sent a Request for Amendment to the Complaint on September 10, 2001, by email. The Center received the Amendment to the Complaint on September 12, 2001, by email and on September 18, 2001, in hard copy.

3.5 The Centerís Formal Requirements Compliance Checklist was completed on September 18, 2001.

3.6 The Center sent a "Notification of Complaint and Commencement of Administrative Proceeding" to the Respondent by FedEx, facsimile and email and to the Complainant by email on September 20, 2001, in accordance with paragraph 2(a)(i) and (ii) of the Rules. The attempt is thus sufficient to discharge the Providerís responsibility.

3.7 No Response was filed.

3.8 The Center sent the Respondent and Complainant a "Notification of Respondent Default" on October 13, 2001, by email.

3.9 In cases where no response has been filed, the Panel is particularly concerned to ensure that the requirement of paragraph 10(b) of the Rules, that the parties are treated with equality and that each party is given a fair opportunity to present its case, is fulfilled. The Panel is of the opinion that the Respondent has probably received actual notice of the Complaint. (Annex O of the Complaint contains evidence that one of the email addresses used by the Center was in fact used by Respondent in communications with the Complainant. Furthermore, it seems the facsimile transmission was successful.)

3.10 Considering the actions undertaken by the Provider, the Panel is of the view that in the present case, if the Respondent has not received actual notice of the proceedings, it is attributable solely to the Respondentís contact particulars in the Whois database being erroneous. Neither the Complainant nor the Provider could take any alternative action.

3.11 The Center sent the parties a "Notification of Panelist Appointment" on October 25, 2001. The Center sent the parties a "Notification of Appointment of Administrative Panel and Projected Decision Date" on November 6, 2001.

3.12 All other procedural requirements appear to have been satisfied.

 

4. Factual Background

4.1 Activities of the Complainant

The following information was asserted as fact by the Complainant and remains uncontested.

The Complainant operates a chain of luxurious resort hotels (Annex G).

4.2 The Complainantís Trademarks

The following information is asserted as a fact in the Complaint and remains uncontested:

The Complainant has furnished evidence of the registration of "AMANRESORTS" as a trademark in the Kingdom of Cambodia from October 26, 1998, in numerous classes. For example, Registration number 011019 on the Principal Register is for hotel and motel services, catering service etc (International class 42). Registration number 011017 on the Principal Register is for arranging transportation of passengers and goods by road, rail, sea and air etc (International class 39). (Annex E). The Complainant also details the registration of the "AMANRESORTS" trademark in many countries including Australia, Hong Kong, Indonesia, Laos, Vietnam and several European countries (Annex F). There are also pending applications for the trademark "AMANRESORTS" in Mexico, Singapore, the United States of America etc.

"Öthe Complainant is also the proprietor of more than 200 registrations and pending applications for trade marks incorporating the prefix "AMAN" which include but not limited to "AMANDARI", "AMANUSA", "AMANJIWO", "AMANKILA" and "AMANWANA" for goods and/or services in International Classes 3, 16, 25, 35, 39, 41 and 42. A list of such registrations and pending applications are provided as Annex F."

4.3 Activities of the Respondent

The Complainant asserts and it remains uncontested that the Respondent is a travel agent.

4.4 The Complainantís Contentions

4.5 The Complainant asserts that each of the elements specified in paragraph 4(a) of the Policy have been satisfied.

In reference to paragraph 4(a)(i) of the policy, the Complainant asserts that the domain name in dispute, <amanresort.com > is almost identical and/or confusingly similar to the Complainantís registered trademark "AMANRESORTS".

4.6 In reference to paragraph 4(a)(ii) of the policy, the Complainant asserts that the Respondent has no legitimate interest in the domain name. In particular, it is asserted that:

(a) "The Respondent has no relationship with or permission from the Complainant to use the Complainantís trade name and/or trade mark "AMANRESORTS" and/or word confusingly similar thereto whatsoever."

(b) The Respondent is not known by the domain name. The Respondent refers to itself as "Access Bali Online" or ABL ; and

(c) "The Respondent is not in fact offering any goods and/or services under the domain name. The Respondent only linked the domain name to another web site "baliwww.com" which is a site operated by the Respondent in relation to its travel agency services."

4.7 In reference to paragraph 4(a)(iii) of the policy, the Complainant asserts that the domain name has been registered and used in bad faith because:

"ÖBy featuring the Complainantís copyrighted artworks, photographs and literary text on the web pages at "baliwww.com/amanresort" from which the Respondentís domain name is linked to, the Respondent has deliberately misled and/or attempted to mislead Internet users to the Respondentís web site mistaking the web site as the Complainantís or that the Respondentís web site is affiliated to, sponsored by and/or endorsed with the consent of the Complainant. It is obvious that the Respondent is using the domain name with an intent for commercial gain misleading to divert the Complainantís customers. The Respondent is not making a legitimate non-commercial or fair use of the domain name."

Furthermore,

"By a email dated 19th June 2001, the Complainantís solicitors demanded the Respondent to either immediately cancel registration of the domain name or to assign the domain name registration to the Complainant, the Respondent responded by offering to assign the domain name to the Complainant on the following conditions:-

(i) a sum of US$30,000 be paid to the Respondent as consideration for the assignment of the domain name.

(ii) the Complainant shall allow the Respondent to feature the Complainantís property.

(iii) the Complainant shall give the Respondent "contract rate" room on request basis; and

(iv) the transfer of domain name be witnessed by a notary."

This correspondence is contained in Annex P.

 

5. Discussion and Panel Findings

This section is structured by reference to the elements required by paragraph 4 (a) of the Policy. The onus is on the Complainant to make out its case on the balance of probabilities.

5.1 Domain Name is identical or confusingly similar to Complainantís Mark

The Panel is satisfied that the domain name, <amanresort.com> is confusingly similar to the Complainantís mark," AMANRESORTS". The only difference between the two is the use of the singular Ďresortí in the domain name, the .com gTLD suffix performing no distinguishing role.

The Panel is therefore satisfied that the Complainant has proved paragraph 4(a)(i) of the Policy.

5.2 The Respondent has no rights or legitimate interests in the domain name

The disputed web site <amanresort.com> currently resolves to <baliwww.com/amanresort/> but did formerly resolve to a site which did not appear to be a re-direction. Both originally, as now see www.web.archive.org/web/*/http://amanresort.com, the site features a number of the Complainantís properties in Indonesia and appears to be endorsed by or affiliated with the Complainant. Certainly there is no disavowal of any connection with the Complainant and the clear impression is that the Complainant is operating the site to accept bookings for its Indonesian (especially Bali) properties.

The Panel is satisfied beyond doubt that the Respondent only uses the disputed domain name to pose as the Complainant. The Panel notes that the Complainant has received referrals from the Respondent. In the opinion of the Panel, this does not amount to permission being given to the Respondent. The Complainantís assertion that the Respondent has no rights or legitimate interests in the domain name is not unreasonable and has not been contradicted by any evidence available to the Panel.

The Panel finds that the Complainant has proved paragraph 4(a)(ii) of the Policy.

5.3 The domain name has been registered and is being used in bad faith.

The Panel is satisfied beyond doubt that the Respondent has intentionally attempted to attract for commercial gain, Internet users to its web site, by creating a likelihood of confusion with the Complainantís mark as to the source, sponsorship, affiliation and endorsement of the web site or location and of a product or service on the web site or location. This is because:

- the domain name in dispute is confusingly similar to both the Complainantís trademark and web site (<amanresorts.com>).

- the Respondent flagrantly portrays the disputed web site as being one of the Complainantís websites.

The Panel is satisfied that the Respondentís conduct is squarely within Paragraph 4(b)(iv) of the Policy which treats these facts as evidence of registration and use of the domain name in bad faith (Paragraph 4(b) of the Policy).

The Respondentís attempt to sell the domain name to the Complainant under such conditions, and at an inflated price, also evidences bad faith.

The Panel therefore finds that the Complainant has proved paragraph 4(a)(iii) of the Policy.

 

6. Decision

The Panel has found that all of the requirements of paragraph 4(a) of the Policy have been proven by the Complainant. Accordingly, the Panel orders that the domain name <amanresort.com> be transferred by Tucows.com, Inc. to the Complainant, Amanresorts Limited.

 


 

Philip Argy
Presiding Panelist

James Dabney
Panelist

Andrew Brown
Panelist

Dated: November 20, 2001