WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Look Before You Book Ltd. v. James Hickson, t/a Escape Publicity
Case No. D2002-0434
1. The Parties
Complainant is Look Before You Book Ltd., a New Zealand corporation, with its registered office c/o Richard Cooper & Associates Ltd, of Tauranga, New Zealand. Complainant's contact address is at Herne Bay, Auckland, New Zealand. Complainant is represented by Baldwin Shelston Waters, Auckland, New Zealand.
Respondent is James Hickson doing business as Escape Publicity whose addresses in the records of the concerned Registrar, Network Solutions, Inc., are shown as at London, United Kingdom and Welling, Kent, United Kingdom.
According to the Registrar, the Respondent in this administrative proceeding in relation to <lookbeforeyoubook.info> is James Hickson. The domain name was registered on September 15, 2001.
According to the Registrar, the Respondent in this administrative proceeding in relation to <lookbeforeyoubook.com> is Escape Publicity, based in the United Kingdom. The domain name was registered on April 19, 1999.
Complainant conducted a search of the United Kingdom's Companies Office database on January 22, 2002, which did not reveal any registered company having the name Escape Publicity. Complainant has assumed that Escape Publicity is a trading name of James Hickson who is shown as the administrative, billing and technical contact for the domain name <lookbeforeyoubook.com>.
2. Domain Name and Registrar
The domain names in issue are <lookbeforeyoubook.info> and <lookbeforeyoubook.com>.
The registrar with whom <lookbeforeyoubook.info> and <lookbeforeyoubook.com> are registered is Network Solutions, Inc., 505 Huntmar Park Drive, Herndon, VA 20170, United States of America.
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received the Complaint via email on May 6, 2002, and in hard copy on May 14, 2002. The Center transmitted an Acknowledgement of Receipt of Complaint to the Complainant and to the Respondent on May 10, 2002.
On May 10, 2002, the Center transmitted via email to Network Solutions, Inc. a request for registrar verification in connection with this case.
On May 13, 2002, Network Solutions, Inc. transmitted via email to the Center Network Solutionsí confirmation that Network Solutions, Inc. is the Registrar of the two domain names in dispute. Network Solutions, Inc. advised that Escape Publicity is the registrant of the domain name <lookbeforeyoubook.com>, and that the Policy applies to the domain name. Network Solutions, Inc. advised of the registrantís address as shown in their records and that the administrative contact is shown as James Hickson of Escape Publicity.
In the same report Network Solutions, Inc. also confirmed that James Hickson is the registrant of the domain name <lookbeforeyoubook.info>, and that the Policy applies to the domain name. Network Solutions, Inc. advised of the registrantís address as shown in their records. The administrative contact is shown as James Hickson of Kent, United Kingdom.
On May 11, 2002, the Center received a communication from the Respondent James Hickson by email registering a defense of the Complaint against him. On May 13, 2002, the Center advised Mr. Hickson that the dispute will be decided by a Panel appointed by the Center and that the Complaint would be notified to him once the Center had reviewed it for compliance with the requirements of the Uniform Domain Name Dispute Resolution Policy ("the Policy").
On May 13, 2002, the Center sent a Notification of Complaint Deficiency to the Complainant advising that the Complaint did not correctly identify the Registrar with which the domain names were allegedly registered at the time the Complaint was filed. The Center advised that according to information received from the concerned Registrar, both domain names are registered with Network Solutions, Inc. The Center also required the Complainant to include a submission as to the jurisdiction of the Courts in at least one specified Mutual Jurisdiction.
On May 16, 2002, the Complainant forwarded an Addendum to the Complaint to the Center which provided the information that the domain name <lookbeforeyoubook.info> is registered with Network Solutions Inc. and a submission that any challenge to the decision by an Administrative Panel must be addressed to the courts of the State of Virginia, United States of America.
The Center verified that the Complaint satisfied the formal requirements of the Policy, 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"). The Complainant made the required payment to the Center.
On May 22, 2002, the Center transmitted Notification of Complaint and Commencement of the Administrative Proceeding, together with a copy of the Complaint, to the Respondent and to Respondentís Technical Contact via email, fax and via post/courier to the addresses provided by the Registrar, Network Solutions, Inc. In the Notification, the Center advised that the response was due by June 11, 2002, pointed out that the response should be in accordance with the Rules and Supplemental Rules, and described the consequences of a default if the response was not sent by June 11, 2002, including inter alia that an Administrative Panel would be appointed to review the facts and decide the case, and the Panel may draw appropriate inferences in the event of default.
On June 12, 2002, the Center issued a Notification of Respondent Default.
On June 12, 2002, (after receiving the Notification of Respondent Default) the Respondent forwarded a Response to the Center.
On June 13, 2002, the Center forwarded an email to Mr. Hickson acknowledging receipt of the Response on June 12, 2002. The Center confirmed that Mr. Hickson telephoned the Center on June 12, 2002, to inquire whether his Response could be submitted shortly after the due date. The Center had advised Mr. Hickson that he could request an extension to file the Response and provide reasons for the late response or he could submit the Response after the due date, and the Center would transmit the Response to the Panel who would have the sole discretion as to whether to consider his Response in deciding the case.
On June 14, 2002, a Supplemental submission was received from the Respondent which consisted of a copy of a letter from Richards Travel.
On June 17, 2002, the Complainant forwarded an email to the Center objecting to the late submission of the Response by the Respondent. The Complainant requested that the Panel disregard the late-filed Response and the additional material submitted on June 14, 2002.
On June 19, 2002, the Center advised the parties via email of the appointment of Ross Carson as the sole Panelist, and advised that the decision was due to be rendered on July 3, 2002. The Center also forwarded the Case File to the Panelist by email and courier on June 19, 2002.
4. Factual Background
Complainant advises that Complainant Look Before You Book Ltd is a large New Zealand based business that began trading in 1993. The Look Before You Book concept consists of the preparation and provision of video based travel information to potential travelers.
Look Before You Book Ltd owns two registered trade marks, one in New Zealand and one in Australia. These include a device, being a ring around a globe, the most essential element of which is the words "Look Before You Book".
The first registration is Australian Trade Mark No. 644675, filed on November 3, 1994, and registered in Class 41 in relation to, "information services for education, entertainment, recreation and including multimedia entertainment services in this class." (IP Australiaís trade mark record for this mark was provided as Annex 1 to the Complaint).
The second registration is New Zealand Trade Mark No. 242727, filed on November 4, 1994, and registered in Class 41 in relation to, "information services for education, entertainment and recreation included in this class". (The Intellectual Property Office of New Zealandís (IPONZ) trade mark record for this mark was provided as Annex 2).
This mark is used widely on all of Look Before You Bookís materials, including its stationery, promotional materials and the videos it produces. (Examples of such material were provided as Annex 3).
Look Before You Book also owns the following domain names: <lbyb.biz>, <lbyb.com>, <lbyb.co.nz>, <lbyb.co.uk>, <lbyb.au.com>, <lbyb.com.au>, <lookbeforeyoubook.biz>, <lookbeforeyoubook.co.nz>, <lookbeforeyoubook.travel>, <lookbeforeyoubook.au.com>, <lookbeforeyoubookonline.com>, <lookbeforeyoubookonline.co.uk>. (Confirmation of ownership of these domain names was provided as Annex 4.)
All of these domain names link to Look Before You Bookís website. (Printouts of excerpts from that website were provided as Annex 5). Look Before You Book Ltd uses its trademark LOOK BEFORE YOU BOOK widely on the website to promote its business.
The Complainant company is comprised of a team of travel and video professionals based in New Zealand. Commencing in 1993 the Complainant has prepared videos of airports, car rentals, selected hotels, and selected restaurants in various tourist locations such as Fiji, Hawaii, Singapore, Disneyland and London. The videos are sold to members of the travel industry such as travel agents and potential travelers. The travel industry provides the videos to potential travelers who want more information about proposed destinations.
For instance the London LOOK BEFORE YOU BOOK videos contain the following segments:
Getting around: Arriving at Heathrow Ė Hotel links
What to do: Golden ToursMadam Tussauds
Where to stay: List of ten hotels in different districts in London
Getting Out of London: Great British Heritage Pass
Old English Inns
Grand Hotel De Champagne.
The production of each video involves at least one visit by a staff member of Look Before You Book to the destination involved to approach parties that may wish to be featured on the video. Once a suitable number of such parties have been identified, a film crew visits the destination to record the video segments which are incorporated into the video. Every party featured on each video will clearly be aware of Look Before You Book's activities. (Complaint, Paras, 21, 22)
Attached as part of Annex 9 of the Complaint was a Look Before You Book brochure dated 1996 describing the Look Before You Book video of London. This brochure was widely distributed to travel agents in New Zealand. The brochure also promotes Air New Zealand Passport Holidays. The London Look Before You Book video was updated each year from 1996 to date. (A sample brochure dated 2001 describing the LOOK BEFORE YOU BOOK video of London was also attached as part of Annex 9.)
5. Partiesí Contentions
Complainant avers that all three elements of Policy, Paragraph 4(a) are met because:
1. the domain names in issue are identical or confusingly similar to a trademark in which Complainant has rights;
2. the Respondent has no rights or legitimate interests in the domain names; and
3. the domain names were registered and are being used in bad faith by Respondent.
a. Identical or Confusingly Similar
Complainant submits that the domain names are identical or confusingly similar to Look Before You Book's trademarks which comprise the words "LOOK BEFORE YOU BOOK" wrapped around a globe device.
Complainant submits that the domain names in dispute also comprise the words "LOOK BEFORE YOU BOOK" followed by the extensions .com and .info respectively. The domain name extensions .com and .info should not be considered to be a part of the domain names being contested. The relevant portions of the trademark and the domain names in dispute are identical.
Complainant submits that in the alternative the domain names and trademark are clearly confusingly similar. The globe device featured in the trademark cannot be adequately represented in a domain name. The domain names reflect the entire portion of the trade mark that is capable of being represented in a domain name.
b. Respondent has no rights or legitimate interests in the domain names
Complainant submits that Respondent has no rights or legitimate interests in the domain names or in the website attached to the domain name <lookbeforeyoubook.com>.
Complainant states that Respondent has no connection or association with Look Before You Book Ltd. and is not authorized or endorsed by Look Before You Book Ltd to use the trademark LOOK BEFORE YOU BOOK in a domain name or otherwise.
Complainant submits that Respondent does not have any U.K. or Community trademark applications or registraions that consist of or include the words LOOK BEFORE YOU BOOK. (Complainant attached copies of various searches conducted in the U.K. Patent Office as Annexes 15, 16, 17 and 18 to the Complaint.)
Complainant submits that to the best of its knowledge the Respondent is not called or known as Look Before You Book or any similar word or phrase, Respondent does not own or operate any legitimate business known as Look Before You Book or any similar word or phrase.
Complainant submits that at the time of filing the Complaint the domain name <lookbeforeyoubook.com> contained a rudimentary website going by the name Look Before You Book. Complainant submits that the website appears to have been hurriedly created in response to Complainant's inquiries regarding the domain name. Complainant submits that the website is rudimentary and contains many errors and missing information. It also contains little in the way of real content. (Annex 19 to the Complaint).
Complainant submits that Respondent constructed this website in an attempt to give an appearance of legitimacy to the Respondent's ownership of the domain name <lookbeforeyoubook.com>. Respondent has not attached any website to the domain name <lookbeforeyoubook.info>.
c. Respondentís Bad Faith
Complainant submits that Respondent registered the domain names in dispute primarily for the purpose of selling, renting or otherwise transferring them to Look Before You Book Ltd. or to a competitor for valuable consideration in excess of Respondent's out-of-pocket costs directly related to the domain names.
Complainant avers that when Complainant became aware of the registration of <lookbeforeyoubook.com> it asked its agent in the United Kingdom to contact the Respondent to determine whether he would be interested in selling the domain name. The agent offered to Respondent sums of up to UK£2,000 for the domain name. The Respondent refused these offers and indicated that he would be prepared to sell the domain name for UK£10,000. (Annex 22 to Complaint.)
The domain name <lookbeforeyoubook.info> was registered on September 15, 2001. It has not yet been used. (Annex 23 to Complaint.)
Complainant submits that the domain names in dispute were registered in order to prevent Look Before You Book Ltd. from reflecting its trademark in a corresponding domain name and believes the Respondent has engaged in a pattern of such conduct. Complaint provided a list of other domain names owned by the Respondent (para. 70 of Complaint). Details of these domain names were attached as Annex 24 to the Complaint. The domain names owned by Respondent include:
Complainant submits that a third domain name <lookbeforeyoubook.net> is registered to Christopher Hickson at the same address as that given for James Hickson. James Hickson, the Respondent is the present proceeding, is named as the Technical Contact for the domain name <lookbeforeyoubook.net>. Complainant is not aware of the relationship between Christopher Hickson and James Hickson.
Complainant submits that the following domain names registered by Respondent a considerable time ago have not been used by Respondent and do not link to websites:
<scapepublicity.com> registered January 25, 2000
<europeanpleasures.com> registered April 14, 1999
<game-on.net> registered October 27, 1998
<lookb4ybook.com> registered September 16, 2000
<lookbeforeyoubook.co.uk> registered April 19, 1999
<lookbeforeyoubook.net> registered January 21, 2001
Complainant avers that in a telephone discussion with Look Before You Book Ltd's legal representatives, Respondent stated that he did not wish to sell the domain name <lookbeforeyoubook.com> but he would be interested in forming a partnership with Look Before You Book Ltd. Respondent claimed to have established such relationships with many other companies.
Complainant submits that Respondent identifies existing companies, registers corresponding domain names, then offers to enter into partnerships with them. Complainant suspects that in such partnerships the Respondent provides the domain name and develops the website for the partner. The partner must use Respondent's website development and/or website hosting and/or internet consultancy services.
Complainant submits that by using the domain names in dispute the Respondent intentionally attempted to attract Internet users to the Respondent's website or other on-line location for financial gain, by creating a likelihood of confusion with Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on the Respondent's web side or location.
Complainant submits that in today's global economy, companies often have websites in the .com domain name space, or one of its alternatives, such as .net and .info. Internet users hearing of Look Before You Book are likely to enter <lookbeforeyoubook.com> into their browsers when attempting to locate Complainant's website. Respondent operates a business that focuses on provision of internet and e-commerce related services. Respondent would be well aware of these trends and in a position to take advantage of them.
Complainant submits that it is not aware of any evidence of the Respondent's use or demonstrable preparation to use either of the domain names in dispute or a name corresponding to the domain names in connection with a bona fide offering of goods or services prior to notice to the Respondent of the current dispute. Complainant believes that the website hosted on <lookbeforeyoubook.com> does not constitute a bona fide offering of goods or services but is instead an attempt to give an appearance of legitimacy to the registration of that domain name.
Complainant submits that to the best of its knowledge Respondent is not making a legitimate non-commercial or fair use of the domain names but instead intends to misleading divert customers of Complainant for commercial gain or tarnish Look Before You Book's trademark.
The Panel accepts the response filed on June 12, 2002, and the Supplemental submission filed on June 14, 2002.
The Respondent submits that the domain name <lookbeforeyoubook.com> registered on April 19, 1999, was registered in good faith and any other interested party including the Complainant had the same opportunity to register the domain name but failed to act.
The Respondent states that he continued to develop and integrate <lookbeforeyoubook.com> into Respondent's other online ventures <virtual-hotels.com>, <virtualocations.com> and <verticalpicture.com>. The Respondent states he is in partnership with Interactive Picture Corporation of Tennessee USA as a web developer of technology and has been since 1997. Respondent states that Respondent has engaged in various associations with partners to build a database of 360 x 360 degree iPIX images of hotels; conference facilities; restaurants; clubs; properties and holiday locations.
The Respondent states that he has not attempted to create confusion by his use of the domain names and did not attempt to copy any trademark in use by anyone including the Complainant. The Respondent states that he never knew of the Complainant's presence on the internet until the Complainant telephoned the Respondent requesting the Respondent to sell <lookbeforeyoubook.com> to the Complainant. Respondent submits that at the time the Complainant was trading under the domain name <lbyb.com>. The Respondent submits that only after locating the domain name on the web did the Complainant change its corporate name from Seeing Is Believing to Look Before You Book Limited. The Respondent states as far as the trademark is concerned there is no similarity of the design other than the words that are generic and therefore not allowed in trademark registration.
The Respondent submits that if the Complainant registered the trademark LOOK BEFORE YOU LOOK device in 1994 why did the Complainant register the domain name <lbyb.com> in November 2000 instead of <lookbeforeyoubook.com>. The Respondent alleges that the Complainant, by requesting transfer of the domain names in dispute, is trying to profit from Respondent's established business.
The Respondent denies that the website <lookbeforeyoubook.com> was rudimentary. The Respondent states that he never attempted to seek money from Look Before You Book for the website <lookbeforeyoubook.com>.
The Respondent further states there is no relation between the Respondent's business and the Complainant's business as the Respondent only uses iPIX technology whereas the Complainant uses video. The Respondent states that he has placed a link on the website <lookbeforeyoubook.com> as a means not to confuse "my object" with that of the Complainant.
The Respondent states that he spends £10,000 a year in advertising <lookbeforeyoubook.com>. The Respondent enclosed a sample pen with advertising on the pen comprised of flags of various countries and containing the words VIRTUAL-HOTELS.COM and the words LOOK BEFORE YOU BOOK and a telephone number. The Respondent also provided a sample of a small digital desk clock featuring LOOK BEFORE YOU BOOK and the partial URL <www.lookbeforeyoubook.com> on the face of the clock. A sample postcard features VIRTUAL-HOTELS.COM, Look Before You Book and VIRTUALPICTURE.COM.
The Respondent attached a letter from Richards Travel Bureau and a photograph of the shop which includes a panel above the shop with the words LOOK (representation of a weathervane) BEFORE YOU BOOK. The owner stated that the sign was present on the shop in 1970 when the proprietor took over the shop. The proprietor stated that James Hickson approached him in 1998 and inquired about the origin of the slogan. The proprietor was of the opinion that the slogan was generic. No mention was made of the weathervane which includes N.E.W. & S.
6. Discussion and Findings
Paragraph 4(a) of the Policy directs that Complainant must prove, with respect to the domain names in issue, each of the following:
(i) That the domain names in issue are identical or confusingly similar to a mark in which Complainant has rights; and
(ii) That the Respondent has no rights or legitimate interests in respect of the domain names; and
(iii) That the domain names have been registered and are being used in bad faith.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, any one of which for purposes of Paragraph 4(a)(iii) above, if proved by a complainant, shall be evidence of a respondentís registration and use of a domain name in bad faith.
Paragraph 4(c) of the Policy sets out three illustrative circumstances any one of which, if proved by respondent, shall demonstrate respondentís rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii) above.
a. Preliminary Observations
The Panel has assured itself that the parties have been treated with equality and that the Respondent has been given a fair opportunity to present its case. (Rules, Paragraph 10(b).) Accordingly, in the Panelís view, the Respondent has been afforded due process.
b. Identical or Confusing Similarity
Complainant has the burden of proving that the trademark and domain names in dispute are identical or confusingly similar.
The Respondent submits that the domain names in dispute are not confusingly similar to the registered trademarks which include a device. The domain names in dispute when sounded are confusingly similar to the words of the registered trademarks. The domain names in dispute are confusingly similar as the words LOOK BEFORE YOU BOOK are the prominent features of both the trademarks and both the domain names in dispute.
The Respondent alleges that the trademarks are generic and should not be protected. However, both the Australian and New Zealand Trade Marks Offices registered the Complainant's Trade Mark LOOK BEFORE YOU BOOK & device. There is no evidence of use of the trademark by others except for use of LOOK (weathervane) BEFORE YOU BOOK on a single shop.
The Panel finds that the domain names in dispute and the Complainantís trademark are confusingly similar.
c. Rights or Legitimate Interests
The second matter which the Complainant must prove is that the Respondent has no rights or legitimate interests in respect of the domain names in dispute.
A Respondent may demonstrate rights and legitimate interests in a domain name in dispute by establishing one or more of the circumstances set out in paragraph 4(c)(i), (ii) and (iii) of the Policy. The Respondent is not limited to the three circumstances which read as follows:
(i) before any notice to you of the dispute, your use of or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The domain name <lookbeforeyoubook.com> was registered by Escape Publicity on April 19, 1999 (Complaint, Annex 2). The Complainant first became aware of the domain name <lookbeforeyoubook.com> in early 2000. (Complaint, Annex 19). There was no website attached to the domain name at the time that Complainant became aware of the registration of the domain name. Early in 2000 a single, elementary webpage was attached to the domain name. The webpage showed several blinking eyes and the words "under construction". Look Before You Book was not printed on the webpage (Complaint, Annex 19.) Around April or May 2001 the single webpage was replaced with the current website (Complaint, para. 58.)
The Respondent has been involved in various associations with partners to build a database of 360 by 360 degree iPIX image of hotels, conference facilities, restaurants, clubs, properties and holiday locations. (Response, p. 3.)
The Respondent is the owner of the domain name <virtual-hotels.com> registered on June 2, 1998. The <virtual-hotels.com> website features a database of hotels throughout the world. The <virtual-hotels.com> website includes the statement: "Use the unique 'Look Before You Book' system to actually view and navigate through your chosen hotel". Preparation of iPIX images of hotel rooms and facilities in London required representatives of the Respondent or his associated partners to offer their services to London hotels and restaurants and to prepare iPIX images at the London hotels which are shown on <virtual-hotels.com> website. The Respondent and his associated partners were visiting hotels and restaurants in London some two years after the Complainant first approached London hotels, restaurants and car rentals inviting the hotels, restaurants and car rentals to have video segments taken of their facilities to be included in the LOOK BEFORE YOU BOOK videos.
I find on a balance of probabilities that the Respondent was aware of the LOOK BEFORE YOU BOOK videos of London hotels, restaurants etc. before the Respondent registered the domain name <lookbeforeyoubook.com>. The business of arranging with hotels, restaurants, conference facilities to prepare a database of images to be viewed by potential customers is a unique and highly specialized business in which the number of competitors is limited and well known. In Micron Electronics, Inc. v New World Concepts, Inc. WIPO Case No. D2001-0225, the Panel in finding that the Respondent had no rights or legitimate interests in respect of the domain name relied on likely knowledge of the trademarks of a direct competitor of the Complainant.
The Respondent carries on business under the trade-name Escape Publicity and not under the name LOOK BEFORE YOU BOOK. The Respondent includes the statement on Respondent's <lookbeforeyoubook.com> webpage: "No other website, correct us if you know different provides images and information about a range of locations before you book". At the bottom of the same webpage the Respondent states "If you want "LBYB.COM" click here". The website <lbyb.com> is operated by the Complainant, Look Before You Book whose websites show images of the interior and exterior of hotels, conference facilities and restaurants. The word "tour" on the webpage of <lookbeforeyoubook.com> links to the Respondent's website <virtual-hotels.com>, a website featuring hotels and other tourist facilities. The domain name <virtualhotels.com> was registered by Centurion in June 1998 before the Respondent registered the domain name <virtual-hotels.com>. The website <virtualhotels.com> operated by Centurion shows images of twelve thousand hotels and other tourist attractions.
Another domain name registered by the Respondent is the domain name <nature.co.uk>. The domain name <nature.com> is registered by the Nature Publishing Group, the publishers of Nature Journal. The Respondent's <nature.co.uk> website features a single page advising: "We are currently building our website after sometime. We suffered severe actions against our website from anti-nature protestors and had to disconnect the site. We are now able to bring you <nature.co.uk> in a temporary form whislt* we approach our contributors once again to re-instate our pages." The bottom of the web page features the notice "If you are looking for Nature.Com click here."
The Respondent's registration of domain names similar to well known domain names and operating websites showing competitive subject matter to the subject matter on well known websites such as <virtualhotels.com> and <nature.com> is supportive of the finding of the Panel that the Respondent has no rights or legitimate interests in respect of the domain names in dispute.
The inference to be drawn from the link on Respondent's website to Complainant's <lbyb.com> website is that some members of the public or tourist service providers in London and England familiar with the Complainant's LOOK BEFORE YOU BOOK videos, CD ROMS and active websites are confused when the web address <lookbeforeyoubook.com> connects to the Respondent's web side. The trademarks LOOK BEFORE YOU BOOK have been used in tourist promotion since 1994 by the Complainant in New Zealand and Australia and since at least as early as 1996 in approaching hotels, restaurants and other tourist service providers in London and other parts of England.
The Respondent does not carry on business under the name LOOK BEFORE YOU BOOK nor did the Respondent file any trademark applications for LOOK BEFORE YOU BOOK.
The domain name <lookbeforeyoubook.info> was registered on September 15, 2001, and the website is under construction.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the domain names in dispute.
d. Registration and Use in Bad Faith
The third matter which the Complainant must prove is that the domain names have been registered and are used in bad faith.
The Respondent registered the domain names in dispute with knowledge of the use of the trademark LOOK BEFORE YOU BOOK in association with the services of providing images of hotels, restaurants, conference facilities to promote the attendance of customers at the hotels, restaurants or conference facilities.
The use of the domain name <lookbeforeyoubook.com> by the Respondent attracts some of Complainant's customers and tourist service providers familiar with services of Complainant of promoting hotels, restaurants and conference facilities through preparation and display of images of the hotels, restaurants and conference facilities in association with the trademark LOOK BEFORE YOU BOOK.
The link on Respondent's <lookbeforeyoubook.com> website to Complainant's <lbyb.com> website is not a defense to acting in bad faith in attracting business to Respondent's <lookbeforeyoubook.com> website. The Respondent's <lookbeforeyoubook.com> website includes a link to the Respondent's <virtual-hotels.com> website which includes images of hotels and other tourist attractions. Those clients or customers of Look Before You Book who arrive at the Respondent's <lookbeforeyoubook.com> website may stay and use the link to Respondent's website at <virtual-hotels.com> which also includes images of hotels and tourist facilities.
The Respondent's advertising material includes a small quartz desk clock. The wording on the face of the clock is comprised of the words of the Complainant's trademark LOOK BEFORE YOU BOOK with <www.lookbeforeyoubook.com> immediately below the trademark. The Respondent is associating the Complainant's trademark with the Respondent's domain name <lookbeforeyoubook.com>. Samples of pens used by the Respondent in promoting his website <virtual-hotels.com> have the trademark LOOKBEFOREYOUBOOK immediately below the domain name. The samples of advertising material filed by the Respondent disclose advertising associating the Complainant's trademark with various of the Respondent's domain names.
The Respondent by using the domain name <lookbeforeyoubook.com> has intentionally attempted to attract for commercial gain, tourist service providers and internet users to Respondent's website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship, affiliation or endorsement of Respondent's website or services provided on Respondent's website.
The Respondent's other domain name in dispute <lookbeforeyoubook.info> is associated with a website which is under construction. Clients or customers of the Complainant attempting to reach the Complainant by use of the domain name will not be able to do so. The Panel finds that the Respondent has registered the domain name <lookbeforeyoubook.info> for the purpose of disrupting the business of the Complainant. If the website <lookbeforeyoubook.info> was activated, use of the domain name would result in use in bad faith under Paragraph 4(b)(iv) of the Policy.
The Panel finds that the Respondent registered and is using the domain names in dispute in bad faith.
For the foregoing reasons, the Panel decides:
(a) that the domain names registered by the Respondent are confusingly similar to the trademark in which the Complainant has rights.
(b) that the Respondent has no rights or legitimate interests in respect of the domain names; and
(c) that the Respondentís domain names have been registered and are being used in bad faith.
Accordingly, pursuant to paragraph 4(i) of the Policy, the Panel requires that the registration of the domain names <lookbeforeyoubook.com> and <lookbeforeyoubook.info> be transferred to the Complainant.
Dated: July 3, 2002