WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
DTTM Operations LLC v. PMG Consultant, Private Management Group
Case No. D2016-1218
1. The Parties
Complainant is DTTM Operations LLC of New York, New York, United States of America (“United States”), internally represented.
Respondent is PMG Consultant, Private Management Group of Orange City, Florida, United States.
2. The Domain Name and Registrar
The disputed domain name <trumpspa.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 17, 2016. On June 16, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 17, 2016, the Registrar 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 18, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 7, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 8, 2016.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on August 10, 2016. 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
Complaint is the owner of numerous US and international trademark registrations for TRUMP covering a wide variety of goods and services, including in connection with the hotel industry, real estate, golf courses and clubs. In particular, Complainant owns US Trademark Registration No. 2,468,153, registered July 10, 2001, for THE TRUMP SPA in classes 41 and 42 for use in connection with “Fitness classes in the nature of aerobics, calisthenics, kick boxing, step training and yoga, personal fitness training” and “Health spa and beauty salon services, namely, massages, mud body treatments, hydrotherapy and facials. This Registration is incontestable pursuant to the United States Lanham Act, 15 U.S.C. § 1065.
Complainant has used the mark THE TRUMP SPA to brand the spa and wellness operations at several Trump brand properties, including at the Trump International Hotel & Tower in New York City and at the Trump National Doral resort in Miami, Florida.
The disputed domain name was registered on June 6, 2006. The disputed domain name resolves to a parked page.
On February 23, 2016 Complainant sent a cease and desist letter to Respondent demanding transfer of the disputed domain name. Respondent did not respond to the letter.
5. Parties’ Contentions
Complainant contends that the disputed domain name incorporates Complainant’s TRUMP mark in its entirety and the distinguishing elements of THE TRUMP SPA mark in their entirety. Respondent has no rights or legitimate interests in the disputed domain name. The domain name resolves to a parked webpage and therefore is not being used in connection with a bona fide offering of goods or services. Respondent registered and used the domain name in bad faith because it consists of a well-known trademark in the United States and internationally that was well recognized before the registration of the disputed domain name. Complainant mentions that several prior UDRP panels have recognized Complainant’s rights in the TRUMP mark.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Complainant has the burden of proving each of the following three elements under paragraph 4(a) of the Policy in order to be entitled to a transfer of the disputed domain name:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) That Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) That the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant has proven the first element under paragraph 4(a) of the Policy by attesting that it is the legitimate owner of numerous trademark registrations for TRUMP in the US and worldwide, and for the mark THE TRUMP SPA in the US. With the exception of the non-distinguishing word “the”, both marks are included in their entirety in the disputed domain name.
The Panel finds that the disputed domain name is identical to Complainant’s trademarks.
B. Rights or Legitimate Interests
Based on previous UDRP decisions, “a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such a prima facie case is made, the burden 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”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 2.1.
Complainant’s allegations in the Complaint and evidence submitted on this issue are sufficient to make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.
In view of the international recognition of the TRUMP trademarks, it is inconceivable that Respondent was unaware of the existence of Complainant’s trademark rights at the time of registering the disputed domain name. Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services. The disputed domain name resolves to a parked page. Respondent is not commonly known by the disputed domain name and has no license or authorization to use Complainant’s marks for any purpose.
Respondent has not submitted any evidence showing that it has any rights or legitimate interests in the disputed domain name.
The Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists a number of circumstances that, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith.
The Panel notes that the disputed domain name resolves to a parked webpage that is tantamount to “passive holding” of the disputed domain name. This kind of activity may constitute evidence of bad faith use, as per the consensus view of paragraph 3.2 of WIPO Overview 2.0.
The following reasons also contribute to a finding of bad faith registration and use: (i) the widespread recognition of Complainant’s trademarks make it highly unlikely that Respondent had no knowledge of Complainant’s trademark rights at the time of registering the disputed domain; (ii) Respondent did not reply to Complainant’s cease and desist letter or to Complainant’s contentions in its Complaint.
The Panel finds that the disputed domain name has been registered and 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 <trumpspa.com> be transferred to Complainant.
Lynda J. Zadra-Symes
Date: August 24, 2016