Complainant is Sierra Healthstyles LLC, of Tucson, Arizona, United States of America, represented by Venable, LLP, United States of America.
Respondent is Jason Belcher, of Santa Clara, California, United States of America.
The disputed domain name <miravalcondo.com> (the “Domain Name”) is registered with Network Solutions, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 14, 2008. On October 16, 2008, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the Domain Name. On October 16, 2008, Network Solutions, LLC transmitted by email to the Center its verification response confirming that 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 27, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was November 16, 2008. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on November 17, 2008.
The Center appointed Thomas D. Halket as the sole panelist in this matter on December 2, 2008. 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.
On December 11, 2008, the Panel issued its First Procedural Order requesting additional information from Complainant. Complainant filed its response to that Order on December 13, 2008.
The following facts appear from the Complaint and have not been disputed by Respondent.
Complainant operates a spa and hotel resort in Tucson, Arizona under the name Miraval. Complainant also sells MIRAVAL branded homes at its Tucson resort and, with a partner, Miraval Living condominiums in New York City. The New York condominium property opened in December 2007, sales started in November 2006 and services started in April 2008. The property has been marketed and advertised in the New York Times Sunday magazine. Complainant's official website is “www.miravalliving.com”.
Complainant filed an application to register the mark MIRAVAL on October 7, 2004, which registration was granted on November 13, 2007.
Complainant states it has not authorized Respondent to use MIRAVAL in the Domain Name. Respondent does not appear to be using the Domain Name for an offering of its own goods or services but is rather using it in connection with a click through landing page featuring links to Complainant (without Complainant's permission) and to competitors of Complainant. Complainant has no relationship with Respondent and has never authorized it to market Complainant's interest in MIRAVAL branded properties. It does not appear that Respondent ever has sold or attempted to actually sell interests in Complainant's properties.
It would appear from the Registrar's reply to the request for registrant verification that the Domain Name was registered on August 2008.
(a) The Domain Name is identical and confusingly similar to a trademark or service mark in which the Complainant has rights;
(b) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(c) The Domain Name was registered and is being used by Respondent in bad faith.
Respondent did not reply to Complainant's contentions.
Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:
“(i) that the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and,
(iii) that the domain name has been registered and is being used in bad faith.”
Paragraph 4(b) provides that for the purposes of paragraph 4(a)(iii) the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
“(i) circumstances indicating that you [the Respondent] have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.”
The Domain Name contains Complainant's entire MIRAVAL trademark. As such there is a strong presumption, that the Domain Name “is identical or confusingly similar to a trademark or service mark in which Complainant has rights.” The fact that the word “condo” has been added to Complainant's mark to form the Domain Name is in this case not sufficient to alter that conclusion.
“Numerous [UDRP] Panel decisions have established that the addition of words, letters or numbers to a mark used in a domain name does not alter the fact that the domain name is confusingly similar to the mark. Generally, a user of a mark ‘may not avoid likely confusion by appropriating another's entire mark and adding descriptive or non-distinctive matter to it”. 3 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition § 23:50 (4th ed. 1998).
Based upon the foregoing, the Panel finds that the Domain Name is identical or confusingly similar to a mark in which Complainant has rights
Respondent has not been known by the name “Miraval” or used the Domain Name in a bone fide offering of goods or services. Respondent's use of the Domain Name appears solely to redirect visitors to various websites at least some of which either (i) are those of Complainant, but without Complainant's permission (ii) or sell competitors' products. However, it does not appear that Respondent ever sold or attempted to actually sell interests in Complainant's properties. It is also to be noted that Respondent has not submitted any evidence to refute any of these findings.
Accordingly, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
Given the evidence presented by Complainant and not refuted by Respondent, it is not unreasonable to conclude that Respondent has intentionally attempted to attract, for commercial gain, Internet users to the web site at the Domain Name, by creating a likelihood of confusion with Complainant's MIRAVAL mark. And it is clear that the Domain Name is for a website which promotes brands owned by competitors of Complainant.
Accordingly, the unrefuted evidence establishes that Respondent violated paragraph 4(b)(iv) of the Policy in that Respondent “by using the [D]omain [N]ame, [has] intentionally attempted to attract, for commercial gain, Internet users to [its] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [its] web site or location or of a product or service on your web site or location.”
As a result this, the Panel finds that Respondent has registered and is using the Domain Name in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <miravalcondo.com> be transferred to Complainant.
Thomas D. Halket
Dated: December 22, 2008