WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Stena Line Travel Group AB v. Domain Vault
Case No. D2015-1207
1. The Parties
Complainant is Stena Line Travel Group AB of Helsingborg, Sweden, represented by Domain and Intellectual Property Consultants, DIPCON AB, Sweden.
Respondent is Domain Vault LLC of Dallas, Texas, United States of America.
2. The Domain Name and Registrar
The disputed domain name <sembo.com> is registered with Name.com LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 13, 2015. On July 13, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 13, 2015, 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 Complainant on July 16, 2015 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on July 17, 2015.
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 Respondent of the Complaint, and the proceedings commenced on July 30, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was August 19, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 20, 2015.
The Center appointed Roberto A. Bianchi as the sole panelist in this matter on August 31, 2015. 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
Sembo AB is a limited liability company founded in 1987 and based in Helsingborg, Sweden. Since 2007 Sembo AB is a part of Complainant, Stena Line Travel Group AB. Complainant’s company Sembo AB operates the “www.sembo.se” website and provides bookings of hotels, apartments and houses in 136 countries. In 2014 more than 120,000 guests booked trips and vacations through Complainant.
Sembo AB owns the following registrations:
Community Trademark SEMBO, Reg. No. 003719879, Reg. Date September 8, 2005, filed on March 19, 2004, covering advertising agency services in International Class 35, travel agency services, arrangement and reservation of travel and car rentals in International Class 39, and Reservation of hotels and vacation accommodations in International Class 43.
- Swedish trademark SEMBO, Reg. No. 2004/02113, filed on March 19, 2004, covering services in International Classes 39 and 43.
The record on the WhoIs database for the disputed domain name was created on December 10, 2002.
It appears from the case record that on July 30, 2015 both “www.sembo.com” and “sembo.com” returned a 404 Error (Not Found) page. As per Annex 4 of the Complaint, the website at the disputed domain name was resolving to a webpage offering links to travel services.
On September 12, 2015, the Panel connected its browser to the website at the disputed domain name and it was redirected to the commercial website “www.lessno.com” website offering travel services apparently in competition with Complainant. On September 14, 2015, the Panel attempted to connect its browser to the Wayback Machine at “www.archive org” to show past contents of the “www.sembo.com” website. This attempt resulted in the following message: “Page cannot be crawled or displayed due to robots.txt.”
5. Parties’ Contentions
In its Complaint, Complainant makes the following contentions:
Complainant has registered rights in the mark SEMBO. The disputed domain name is identical to the SEMBO mark. There is nothing in the disputed domain name to distinguish it from Complainant’s SEMBO trademarks. The addition of a top level domain, for example “.com”, is irrelevant for the assessment of confusing similarity between a trademark and the domain name.
Respondent is not a licensee of Complainant. Complainant has not given Respondent any permission to register the SEMBO trademark as a domain name.
The usage of the website indicates that Respondent does not have a legitimate interest in the disputed domain name. Controls made on the website of the disputed domain name show that the visitor is first sent to a website filled with commercial advertising. If the visitor then types “www.sembo.com” again, it is redirected to a website that at first glance looks like a legitimate travel website. However, when attempting to click on any of the links that seemingly allow consumers to book trips, the visitor is sent on to a website filled with sponsored links from Complainant’s competitors. This strongly suggests that the disputed domain name was registered in order to commercially damage Complainant’s business. There is no evidence that Respondent has been commonly known by the disputed domain names or that Respondent is making a legitimate noncommercial or fair use of the disputed domain name. Therefore Complainant submits that Respondent lacks a legitimate interest in the disputed domain name.
The above shows that Respondent has used the disputed domain name in bad faith. The disputed domain name was most likely registered by Respondent around December 12, 2010 according to the WhoIs data, since the domain name holder changed from Oakwood Services to a protected WhoIs, which means that Respondent was in bad faith at the time of registration as well. (See Annex 5 and 6 of the Complaint).
Complainant started doing business under the name SEMBO in 1987. It is therefore more than likely that Respondent was well aware of Complainant’s trademarks and business when registering the disputed domain name. The fact that the “www.sembo.com” website includes links leading the visitor to websites owned by Complainant’s competitors implies knowledge of Complainant’s trademarks and business. Therefore, Respondent has used the disputed domain name in bad faith.
On May 18, 2015, Complainant sent a cease and desist letter to Respondent. As a response to this, Complainant received an anonymous reply stating that Complainant would be sued before a U.S. federal court should it proceed with an UDRP proceeding, in clear violation of the Registration Agreement, but that the domain name was for sale.
All the above circumstances strongly suggest that the disputed domain name has been registered and used in bad faith.
The Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
Complainant has shown to the satisfaction of the Panel that it has trademark rights in the SEMBO mark. See section 4 above.
The Panel notes that the disputed domain name contains the SEMBO mark in its integrity, adding just the generic Top Level Domain “.com”. It is well established that such an addition is inapt to distinguish a domain name from a mark. Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark. Thus, the first requirement of the Policy is met.
B. Rights or Legitimate Interests
Complainant contends that it has not granted Respondent a license or any permission to register the SEMBO trademark as a domain name, and that there is no evidence that Respondent has been commonly known by the disputed domain name or that Respondent is making a legitimate non-commercial or fair use of the domain name. Complainant further contends that visitors to the website at the disputed domain name are redirected to websites displaying “sponsored links” from Complainant’s competitors, which suggests that the disputed domain name was registered in order to commercially damage Complainant’s business.
In the Panel’s opinion Complainant’s contentions are supported by the available evidence, and thus are apt to constitute a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. According with the current status of the WhoIs database as reported by the Registrar, the registrant for the disputed domain name is Domain Vault, which excludes the applicability of Policy Paragraph 4(c)(ii). Also, there is no evidence on the record that Respondent owns any trademark rights in the disputed domain name. Further, Complainant has shown that an Internet user who enters “www.sembo.com” into its browser is shown travel and leisure links, unrelated to Complainant, as well as “feature deals” also referring to travel services, equally unrelated to Complainant, which in turn redirect to websites in competition with Complainant. Such use has continued at least until September 12, 2015, where the Panel visited the website at the disputed domain name, and its browser was redirected to websites such as “www.lessno.com”, “www.cheapoair.com”, etc. offering travel services presumably in competition with Complainant. The Panel agrees with Complainant that such a use of the disputed domain name is neither a bona fide use pursuant to Policy paragraph 4(c)(i), nor a fair or legitimate, noncommercial use under Policy paragraph 4(c)(iii).
It is well established that once a complainant has made out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name, the burden of production shifts to the respondent to come forward with allegations and evidence that it does have at least some right or legitimate interest in the domain name. However, in the instant proceeding Respondent failed to submit any allegation in its own favor, or any explanation for its behavior.
The Panel concludes that Complainant made out its case that Respondent lacks rights or legitimate interests in the disputed domain name. The Panel finds that the second requirement of the Policy is also met.
C. Registered and Used in Bad Faith
The Panel notes that the SEMBO mark was registered in 2005, while the record on the WhoIs database for the disputed domain name was created on December 10, 2002, see section 4 above. The Panel also notes that the creation date of the WhoIs record in and by itself does not indicate that Respondent, i.e. the current registrant of the disputed domain name, registered it in 2002. In fact Complainant has shown that the WhoIs record for the disputed domain name was updated at least on November 3, 2010, indicating that Oakwood Services Inc. was then the registrant.1
Complainant concludes from this fact that Respondent, as a later registrant, must also have been fully aware of Complainant and its SEMBO mark. The Panel believes that this conclusion is convincing. In the Panel’s opinion is more likely than not that at the time of the domain name registration in 2010 by the Respondent, any such registrant was aware of the existence of Sembo AB, a company owned by Complainant since 2007, and its SEMBO mark, not only because the registration of the SEMBO mark was granted in 2005, but also because, as shown on Complainant’s “www.sembo.se” website, Sembo AB began operating as a provider of travel services in 1987, that is 15 years before the creation of the record on the WhoIs database in 2002. Also, Complainant has shown that the website at the disputed domain name displayed “sponsored listings” including the commercial websites “www.flyresor.se”, “ZepMeta.se/Travel Deals” and “momondo.se”, on which flights reservations and other travel services were offered in competition with Complainant. Such contents clearly show that the owner of the disputed domain name was aware of Sembo AB (a company owned by Complainant since 2007) and the SEMBO mark, and presumably targeted at the time of the domain name registration. The Panel’s own visit to the website at the disputed domain name, conducted on September 12, 2015, confirms that the present contents of the website at the disputed domain name continue to be of the same nature. See section 4 above. In the circumstances of this case, this means that the registration of the disputed domain name was in bad faith.
Further, the contents of the “www.sembo.com” website suggest that by redirecting to third-party commercial websites and links related to travel, where services in competition with Complainant are offered, Respondent presumably is generating click-through fees Thus, by using the disputed domain name, which is identical to Complainant’s SEMBO mark, Respondent is intentionally attempting to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location, which is a circumstance of registration and use in bad faith of the disputed domain name, pursuant to Policy paragraph 4(b)(iv).
Also, as shown in section 4 above in fine, Respondent appears to have used “robot.txt” to prevent the access to the past contents if its website through the use of the Wayback Machine at “www.archive.org”. In the circumstances of this case the Panel finds the recourse to “robot.txt” to be indicative of bad faith. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 3.10. (“Can the use of “robots.txt” or similar mechanisms to prevent website content being accessed in an on-line archive form a basis for finding bad faith? […] Panels have found that, absent convincing justification in a given case for the employment of “robots.txt” or other similar circumvention mechanisms to prevent access to historical website content on a repository such as the Internet Archive (at www.archive.org), the use of such device may be considered as an attempt by the domain name registrant to block access by the panel to relevant evidence (for example, if “robots.txt” is implemented only after the registrant is put on notice of third party rights). In such a case, a panel may be entitled to assume that appropriately evidenced prima facie reasonable factual allegations made by a complainant as to the historical use of the website to which the domain name at issue resolves are true, and that, depending on those allegations, the use of mechanisms such as “robots.txt” in the particular case may be a relevant (though not necessarily dispositive) consideration for purposes of assessing bad faith.”)
Further, the Panel notes that Respondent was involved in previous UDRP proceeding where the domain name was transferred to the complainants – See The Wendy’s Company and Quality Is Our Recipe, LLC v. Whois Privacy Protection Service, Inc. / Domain Vault LLC, WIPO Case No. D2015-1370; Yahoo! Inc. v. Whois Agent, Whois Privacy Protection Service, Inc. / Domain Vault, Domain Vault LLC, WIPO Case No. D2015-0500; Yahoo! Inc. v. Domain Vault, Domain Vault LLC, WIPO Case No. D2014-1830; eClinicalWorks, LLC v. Whois Privacy Protection Service, Inc./Domain Vault LLC, WIPO Case No. D2014-1059.
Finally, Respondent has failed to submit any allegation in its own favor, or any explanation for its conduct, which given the circumstances of this proceeding reinforces the overall impression of bad faith.
The Panel finds that the third requirement of the Policy is met.
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 <sembo.com> be transferred to Complainant.
Roberto A. Bianchi
Date: September 14, 2015
1 Annex 5 and 6 of the Complaint provide evidence that Oakwood Services was the registrant, and then WhoIs Privacy Services Pty on November 12, 2010.