WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AAPC Properties Pty Limited, Accor Australia & New Zealand Hospitality Pty Limited v. Milan Kovac / Privacy Protect
Case No. D2012-2222
The Complainants are AAPC Properties Pty Limited and Accor Australia & New Zealand Hospitality Pty Limited of Sydney, Australia, represented by King & Wood Mallesons, Australia.
The Respondent is Milan Kovac / Privacy Protect of Bratislava, Slovakia and Shanghai, China, respectively.
2. The Domain Name and Registrar
The disputed domain name <sebelhotel.com> (the “Disputed Domain Name”) is registered with Hebei Guoji Maoyi (Shanghai) LTD aka HEBEI INTERNATIONAL TRADING ( SHANGHAI) CO., LTD dba HebeiDomains.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 13, 2012. On November 13, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On November 14, 2012, 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 the Complainants on November 15, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amended Complaint on November 20, 2012.
On November 16, 2012, the Center transmitted an email to the parties in both Slovak and English language regarding the language of proceedings. On November 21, 2012, the Complainants confirmed its request that English be the language of proceeding. The Respondent did not comment on the language of proceedings by the specified due date.
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 November 26, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was December 16, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 17, 2012.
The Center appointed Andrea Mondini as the sole panelist in this matter on January 9, 2013. 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
4. Factual Background
The Complainants belong to the Accor group of companies which is a major world-wide hotel operator.
The first Complainant owns registrations of the trademark SEBEL for hotel services in Australia (No. 328919, registered on February 16, 1979) and in several other jurisdictions.
The second Complainant operates numerous Sebel hotels in Australia, New Zealand and the South Pacific.
The Disputed Domain Name was registered on November 17, 2006 and is presently resolving to a parking website containing pay-per-click advertisements for hotels and related services.
5. Parties’ Contentions
The Complainants contend that SEBEL is the brand of a famous hotel chain in Australia, that the first Sebel hotel was built in 1963 in Sidney and that many Sebel hotels were opened in Australia, New Zealand and the South Pacific thereafter.
The Complainants state that they acquired the Sebel hotel portfolio in 2012 from the Mirvac Group, and that the SEBEL trademarks were transferred to the first Complainant.
The Complainants allege that the Disputed Domain Name <sebelhotel.com> is confusingly similar to the SEBEL trademark, that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name and that the Disputed Domain Name was registered and is being used in bad faith. In particular, the Complainants contend that the Respondent must have been aware of the SEBEL trademark when it registered the Disputed Domain Name. Further, the Complainants point out that there are sixteen prior UDRP decisions indicating that the Respondent is engaging in cybersquatting activities.
The Respondent did not reply to the Complainants’ contentions.
6. Discussion and findings
A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainants must establish that the Disputed Domain Name is identical or confusingly similar to a trademark in which the Complainants have rights.
The first Complainant owns rights in the trademark SEBEL in Australia and further jurisdictions and provided evidence of its ownership thereof.
The Disputed Domain Name incorporates the SEBEL trademark which is registered for hotel services. The Panel finds that the addition of the word "hotel" increases the confusing similarity of the Disputed Domain Names with the trademark SEBEL because it is descriptive of the business operated by the Complainants under the SEBEL mark.
The Panel, thus, finds that the Complainants established that the Disputed Domain Name is confusingly similar to the trademark SEBEL.
B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainants must establish that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.
Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the potentially impossible task of proving a negative proposition. Such a proof requires information that is primarily within the knowledge of the respondent. Therefore, the common view is that paragraph 4(c) of the Policy shifts the burden of production to the respondent to come forward with evidence of a right or legitimate interest in the domain name. However, the complainant has to make a prima facie showing indicating the absence of such rights or interests. See, e.g. Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
The Complainants made a prima facie case that the Respondent has no rights or legitimate interests in the Disputed Domain Name. In particular, the Complainants have shown that the Respondent has neither been commonly known by the Disputed Domain Name nor made legitimate noncommercial or fair use of the Disputed Domain Name. The Complainants established furthermore, that the Respondent is not using the Disputed Domain Name in connection with a bona fide offering of goods or services.
The Respondent had the opportunity to demonstrate that it has rights or legitimate interests in the Disputed Domain Name, but it failed to do so. Consequently, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Disputed Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainants must establish that the Respondent registered and subsequently used the Disputed Domain Name in bad faith.
Paragraph 4(b) of the Policy enumerates several circumstances that are evidence of registration and use of a domain name in bad faith, including (i) where a domain name is "used to deliberately attract, for commercial gain, Internet users to a website or other online location, by creating a likelihood of confusion with the complainant's name or mark as to the source, sponsorship, affiliation, or endorsement of that website or location or of a product or service on that website or location" or (ii) where a domain name is registered "primarily for the purpose of disrupting the business of a competitor".
In the case at hand, the Complainants have shown that the Respondent's registration and use of the Disputed Domain Name is in bad faith because the only conceivable reason that the Respondent would select the combination of "Sebel" and "hotel" is that the Respondent was aware of the SEBEL hotel brand.
By using the Disputed Domain Name which creates a likelihood of confusion with the Complainants' trademark SEBEL, the Respondent attracts Internet users to its website for commercial gain since it resolves to a commercial website on which similar hotel services as those of the Complainants are offered through pay-per-click advertisements.
A further evidence of bad faith is that there are at least sixteen prior UDRP decisions involving the Respondent and showing that the Respondent engages in systematic cybersquatting activities. See Compagnie Générale des Etablissements Michelin v. Milan Kovac / Privacy-Protect.org, WIPO Case No. D2012-0634.
Accordingly, the Panel finds that the Disputed Domain Name was registered and is being used in bad faith.
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 <sebelhotel.com> be transferred to the First Complainant.
Date: January 14, 2013