WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
City Max Hotel Management LLC v. Denys Kovalenko
Case No. D2015-0968
1. The Parties
The Complainant is City Max Hotel Management LLC of Dubai, United Arab Emirates, represented by Talal Abu Ghazaleh Legal, Egypt.
The Respondent is Denys Kovalenko of South Grafton, Massachusetts, United States of America.
2. The Domain Name and Registrar
The disputed domain name <citymaxhotelalbarshadubai.com> is registered with Fabulous.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 8, 2015. On June 8, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 9, 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 the Complainant on June 10, 2015 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 June 14, 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 the Respondent of the Complaint, and the proceeding commenced on June 17, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was July 7, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 8, 2015.
The Center appointed Marilena Comanescu as the sole panelist in this matter on July 16, 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.
The language of the proceeding is English.
4. Factual Background
The Complainant is a licensee of the Landmark Hotels group, which in its turn, is a licensee of RNA Intellectual Property Limited from the British Virgin Islands, Overseas Territory of United Kingdom of Great Britain and Northern Ireland, the holder of CITYMAX HOTELS trademarks. Supporting evidence was provided as Annexes 1 and 2 to the Complaint.
The Complainant asserts it successfully operates the hotels Citymax Hotels Al Barsha, Citymax Hotels Bur Dubai and Citymax Hotels Sharjah, all in United Arab Emirates and it is promoting its hotel activities since 2005 on the website “www.citymaxhotels.com”.
According to the License Agreement provided as Annex 1 to the Complaint, the Complainant is licensed for the United Arab Emirates trademark registration number 60513 for CITYMAX HOTELS filed on August 2, 2005, registered on May 20, 2006 covering services in class 43.
Other several trademark registrations for CITYMAX HOTELS are held by RNA Intellectual Property Limited, including the Community Trademark registration number 008476087 filed on August 6, 2009, registered on May 31, 2010 covering services in classes 35 and 43.
The disputed domain name <citymaxhotelalbarshadubai.com> was registered on September 29, 2013 and, at the time of filing the Complaint, it was used for providing online booking services for the Complainant’s hotels reproducing, without authorization, the Complainant’s commercial name and the trademark CITYMAX HOTELS.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is confusingly similar to the famous trademark CITYMAX HOTELS in which it holds rights, the Respondent has no rights or legitimate interests in the disputed domain name and the Respondent registered and is using the disputed domain name in bad faith.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In view of the default and the absence of any reply to the Complaint by the Respondent, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to the Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the following circumstances are met:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant holds rights in the CITYMAX HOTELS trademark, according to the License Agreement provided as Annex 1 to the Complaint. The majority of UDRP panels have decided that a licensee of a trademark is considered to have rights in a trademark under the UDRP. See, paragraph 1.8 of theWIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”).
The dominant part of the disputed domain name <citymaxhotelalbarshadubai.com> incorporates the trademark CITYMAX HOTELS in which the Complainant holds rights, with one letter (“s”) missing. In addition to this, the disputed domain name contains the geographical indicators “al barsha dubai”, whereas the Complainant also operates a hotel under the trademark CITYMAX HOTELS in such location, Al Barsha Dubai. Accordingly, adding such indicators are not sufficient to escape a finding of confusing similarity and does not change the overall impression of the disputed domain name as being connected to the Complainant’s trademark; to the contrary in the present case, the addition of the geographical identifier associated with the Complainant’s business name and trademark increases the confusing similarity for the Internet users. See also paragraph 1.5 of theWIPO Overview 2.0.
Further, it is well established in decisions under the UDRP that the presence or absence of spaces, characters (e.g., hyphens, dots) in a domain name and indicators for generic Top-Level Domains (e.g., “.com”, “.biz”, “.net”, “.org”) are typically irrelevant to the consideration of confusing similarity between a trademark and a domain name.
Given the above, the Panel finds that the disputed domain name <citymaxhotelalbarshadubai.com> is confusingly similar to the trademark CITYMAX HOTELS in which the Complainant has rights, pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
The Complainant asserts that the Respondent has no rights to use the CITYMAX HOTELS trademark nor to register a domain name comprising such trademark; at the time of filing the Complaint the website corresponding to the disputed domain name was used, without authorization, in connection with booking services for the Complainant’s hotels. In line with previous UDRP decisions made in similar circumstances, the Panel accepts that the Complainant has provided a prima facie case of the Respondent’s lack of rights or legitimate interests in relation to the disputed domain name, and the burden of production shifts to the Respondent.
The Respondent chose not to challenge the Complainant’s allegations. There is no evidence before the Panel to support the contrary, and therefore the Panel accepts these arguments as facts.
Consequently, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name <citymaxhotelalbarshadubai.com>, pursuant to the Policy, paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
The trademark CITYMAX HOTELS has been registered worldwide since 2005 and is used to promote the Complainant’s business for hotel services.
The disputed domain name was created in 2013 and incorporates the CITYMAX HOTELS trademark and the geographical indicators “al barsha dubai”.
This Panel finds the above convincing evidence that the Respondent was aware of the Complainant’s business and rights in the CITYMAX HOTELS trademark when registering the disputed domain name.
Further, at the time of filing the Complaint, the disputed domain name resolved to a webpage that provides booking services for the Complainant’s hotels without the Complainant’s authorization, thus falsely appearing to be an official website for, or otherwise affiliated with the Complainant. This fact supports the inference that the purpose of the Respondent’s diversion of traffic from the Complainant to itself is for the Respondent’s own commercial gain, at the same time being likely to damage the Complainant’s business and reputation. Such facts constitute bad faith under paragraph 4(b)(iv) of the Policy.
The Respondent did not respond to the Complaint. Given the other circumstances of the case, such behavior may be considered as further evidence of bad faith in registering and using the disputed domain name.
For all the above reasons, the Panel finds that the Respondent registered and is using the disputed domain name <citymaxhotelalbarshadubai.com> in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
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 <citymaxhotelalbarshadubai.com> be transferred to the Complainant.
Date: July 29, 2015