WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Amanresorts Limited, Amanresorts International Pte Ltd v. KIDO SACHIKO/Whois Privacy Protection Service by onamae.com
Case No. D2014-1404
1. The Parties
The Complainant is Amanresorts Limited, Amanresorts International Pte Ltd of Hong Kong, China and Singapore, represented by Penny Leng, Singapore.
The Respondent is KIDO SACHIKO of Tokyo, Japan/Whois Privacy Protection Service by onamae.com of Tokyo, Japan.
2. The Domain Name and Registrar
The disputed domain name <amanresorts.tokyo> is registered with GMO Internet, Inc. d/b/a Discount-Domain.com and Onamae.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 18, 2014. On August 18, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 19, 2014, 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 Complainant on August 20, 2014 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 22, 2014.
On August 20, 2014, the Center transmitted an email to the parties in English and Japanese regarding the language of the proceeding. The Complainant submitted its request that English be the language of the proceeding on August 22, 2014. The Respondent did not submit its comment on the language of the proceeding within 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 August 27, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 16, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 17, 2014.
The Center appointed Douglas Clark as the sole panelist in this matter on September 24, 2014. 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
The Complainant owns and/or manages 27 luxury resorts around the world. The Complainant is the registered proprietor of the trademark AMANRESORTS in various countries including Japan in a number of service classes.
The disputed domain name <amanresorts.tokyo> was registered on July 22, 2014. The website to which the disputed domain name resolves is a parking page for <onamae.com>, the registrar of the disputed domain name. There are no external advertisements on the parking page.
5. Parties’ Contentions
Identical or confusingly similar
The Complainant argues that the disputed domain name <amanresorts.tokyo> is made entirely up of the registered trademark <AMANRESORTS> to which the generic code Top-Level Domain (“gTLD”) “.tokyo” has been added. It is therefore identical or confusingly similar to the Complainant’s registered trademark AMANRESORTS.
No rights or legitimate interests
The Complainant submits that the Respondent has not been known by the disputed domain name and the Respondent has no connection with the Complainant or any of its affiliates and has never sought or obtained any trademark registrations for “amanresorts”.
Registered and used in bad faith
The Complainant submits that there is no doubt that before registration of the disputed domain name the Respondent knew of the Complainant’s rights in the AMANRESORTS trademark. Even though the disputed domain name has not been used, the registration amounts to passive holding that constitutes bad faith use.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Language of the Proceeding
The language of the Registration Agreement is in Japanese. Paragraph 11(a) of the Rules provides that:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
The Complainant requested the language of the proceeding to be English on the grounds the trademark is identical to the Complainant’s AMANRESORTS trademark and because of this the Respondent must be familiar with the English language.
The Respondent did not respond to this request.
The Center made a preliminary determination to:
1) accept the Complaint as filed in English;
2) accept a Response in either English or Japanese;
3) appoint a Panel familiar with both languages mentioned above, if available.
The final determination of the language of the proceeding lies with this Panel. As a first point, this Panel does not consider the Complainant’s submission that the Respondent must be familiar with English to be of much weight. The Complainant and its resorts are well known. Many Japanese have a knowledge of English brands even if they are not able to read or write the language.
Nevertheless, this Panel decided in Zappos.com, Inc. v. Zufu aka Huahaotrade, WIPO Case No. D2008‑1191, that a respondent’s failure to respond to a preliminary determination by the Center as to the language of the proceeding “should, in general, be a strong factor to allow the Panel to decide to proceed in favour of the language of the Complaint.”
Further, as set out below, this Panel considers the merits of the case to be strongly in favour of the Complainant. Translating the Complaint would cause unnecessary delay in this matter.
These factors lead the Panel to determine to follow the Center’s preliminary determination. As the only pleading before the Panel is in English, the Panel will render its decision in English.
6.2. Substantive Issues
This is a very simple case of clear domain name hijacking which the UDRP was designed to stop.
A. Identical or Confusingly Similar
The disputed domain name <amanresorts.tokyo> is made up of the registered trademark AMANRESORTS and the gTLD “.tokyo”. The disputed domain name is identical to the registered trademark AMANRESORTS. The first part of the paragraph 4(a) of the Policy is therefore satisfied.
B. Rights or Legitimate Interests
The Respondent has not responded to the Complaint to assert any rights or legitimate interests. Paragraph 2.1 of the WIPO Overview of WIPO Panel views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) provides:
“While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is generally deemed to have satisfied paragraph 4(a)(ii) of the UDRP.”
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. None of the circumstances in paragraph 4(c) of the Policy, which sets out how a respondent can prove its rights or legitimate interests, are present in this case. This part of the paragraph 4(a) of the Policy is therefore satisfied.
C. Registered and Used in Bad Faith
For similar reasons as those above, the Panel has no hesitation in finding that the disputed domain name <amanresorts.tokyo> was registered in bad faith and is being used in bad faith. The choice of a name identical to the Complainants is clearly intended to attract for commercial gain Internet users to the website.
While the disputed domain name has not yet been used, this does not prevent a finding of bad faith. Having examined all the circumstances of the case the Panel finds that the Respondent registered and is using the disputed domain in bad faith. (See paragraph 3.2 of the WIPO Overivew 2.0).
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 <amanresorts.tokyo> be transferred to the Complainant.
Date: September 25, 2014