WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Coryn Group II, LLC v. Carolina Rodrigues, Fundacion Comercio Electronico
Case No. D2020-0168
1. The Parties
The Complainant is The Coryn Group II, LLC, United States of America (“United States”), represented by Norvell IP llc, United States.
The Respondent is Carolina Rodrigues, Fundacion Comercio Electronico, Panama.
2. The Domain Name and Registrar
The disputed domain names < unlimetedvacationclub.com>, <applevcacations.com>, <applevacatiins.com>, <applevacationes.com>, and <applevacatoons.com> are registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 23, 2020. On January 23, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 24, 2020, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on January 27, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 16, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 17, 2020.
The Center appointed Kaya Köklü as the sole panelist in this matter on February 19, 2020. 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 Center received an unsolicited supplemental filing form the Complainant on February 12, 2020, requesting the submission of an amended Complaint adding an additional four disputed domain names to the ongoing proceedings. The Center acknowledged receipt of the supplemental filing and forwarded it to the Panel for its consideration.
On March 3, 2020, the Panel issued a Panel Order requesting the Center to obtain registrar verification for the Additional Domain Names, to notify the Respondent that the Additional Domain Names have been added to the proceeding, and to grant the Respondent five calendar days to submit its potential comments in relation to the Additional Domain Names. On March 3, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Respondent did not submit a Response or any comments on the Additional Domain Names.
4. Factual Background
The Complainant is a company registered in the United States and a member of the Apple Leisure Group. It is active in the field of travel-related services, including all-inclusive offerings, entertainment services, and a network of luxury resorts.
The Complainant owns various word and figurative UNLIMITED VACATION CLUB and APPLE VACATIONS trademark registrations in numerous jurisdictions, including in Panama, where the Respondent appears to be located. According to the Complaint, the Complainant is, inter alia, the registered owner of the Panamanian Trademark Registrations No. 214091 (registered on July 2, 2012) for UNLIMITED VACATION CLUB and No. 215794 (registered on August 22, 2012) for APPLE VACATIONS, covering trademark protection, inter alia, for travel-related services.
The Complainant also owns and operates various domain names that incorporate the UNLIMITED VACATION CLUB and APPLE VACATIONS trademarks, such as <unlimitedvacationclub.com> and <applevacations.com>.
The Respondent is an individual from Panama.
The creation dates of the disputed domain names are as follows:
<unlimetedvacationclub.com> July 17, 2019
<applevcacations.com> November 4, 2019
<applevacatiins.com> November 8, 2019
<applevacationes.com> November 8, 2019
<applevacatoons.com> November 4, 2019
The disputed domain names are not actively used and resolve to parking pages with pay-per-click links.
5. Parties’ Contentions
The Complainant requests the transfer of the disputed domain names.
The Complainant is of the opinion that the disputed domain names are confusingly similar to its UNLIMITED VACATION CLUB and APPLE VACATIONS trademarks.
Furthermore, the Complainant argues that the Respondent has no rights or legitimate interests in respect of the disputed domain names.
Finally, it is argued that the Respondent has registered and is using the disputed domain names in bad faith. The Complainant believes that the Respondent was fully aware of the Complainant’s trademarks, when registering the disputed domain names. The Complainant is further of the opinion that the Respondent apparently tries to mislead Internet users and to gain illegitimate benefits by freeriding on the goodwill of its trademarks.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1. Additional Domain Names
After the commencement of the proceedings, the Complainant filed an amendment to the Complaint on February 12, 2020, to add four Additional Domain Names to the proceedings.
The WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.12.2, provides that it is up to the Panel to determine whether or not to accept requests to add domain names to the Complaint after the Respondent has been notified and the proceedings have formally commenced.
The Panel notes that as regards the Additional Domain Names, the Complainant and the Respondent are still the same and all disputed domain names are closely connected. Also, the Panel notes that the Additional Domain Names were registered by the Respondent just a few weeks prior to the filing of the Complaint.
The Panel finds that it would be procedurally efficient, fair, and equitable, to accept the Complainant’s request to include the Additional Domain Names to these proceedings.
Hence, the Panel has decided to permit the inclusion of the Additional Domain Names to these proceedings.
6.2. Substantive Issues
According to paragraph 15(a) of the Rules, the Panel shall decide the Complaint in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.
In accordance with paragraph 4(a) of the Policy, the Complainant must prove that each of the three following elements is satisfied:
(i) the disputed domain names are identical or confusingly similar to a trademark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and
(iii) the disputed domain names have been registered and are being used in bad faith.
Paragraph 4(a) of the Policy states that the Complainant bears the burden of proving that all these requirements are fulfilled, even if the Respondent has not replied to the Complainant’s contentions. Stanworth Development Limited v. E Net Marketing Ltd., WIPO Case No. D2007-1228.
However, concerning the uncontested information provided by the Complainant, the Panel may, where relevant, accept the provided reasonable factual allegations in the Complaint as true. See, section 4.3 of the WIPO Overview 3.0.
It is further noted that the Panel has taken note of the WIPO Overview 3.0 and, where appropriate, will decide consistent with the consensus views captured therein.
A. Identical or Confusingly Similar
To begin with, the Panel confirms that the Complainant has satisfied the threshold requirement of having relevant trademark rights. As evidenced in the Complaint, the Complainant is the owner of various UNLIMITED VACATION CLUB and APPLE VACATIONS trademarks, which are registered in many jurisdictions since at least 2012, including in Panama, where the Respondent is located.
The Panel finds that all disputed domain names are confusingly similar to the Complainant’s trademarks.
As stated at section 1.9 of the WIPO Overview 3.0, where the relevant disputed domain name consists of a common, obvious, or intentional misspelling of a trademark, the disputed domain name is considered to be confusingly similar, if the disputed domain name contains sufficiently recognizable aspects of the relevant trademarks.
In the present case, the Panel notes that all of the disputed domain names incorporate confusingly similar misspellings of the UNLIMITED VACATION CLUB and APPLE VACATIONS trademarks by including adjacent keyboard letters and/or the substitution of similar-appearing characters.
In view of the above, the Panel is satisfied that the Complainant has met the requirements under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
While the burden of proof remains with the Complainant, the Panel recognizes that this would often result in the impossible task of proving a negative, in particular as the evidence needed to show the Respondent’s rights or legitimate interests is primarily within the knowledge of the Respondent. Therefore, the Panel agrees with prior UDRP panels that the Complainant is required to make out a prima facie case before the burden of production shifts to the Respondent to show that it has rights or legitimate interests in the disputed domain names to meet the requirements of paragraph 4(a)(ii) of the Policy. Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455.
With its Complaint, the Complainant has provided prima facie evidence that the Respondent has no rights or legitimate interests, particularly no license to use the Complainant’s UNLIMITED VACATION CLUB and APPLE VACATIONS trademarks in a confusingly similar way within the disputed domain names. In this regard, the Panel accepts that the nature of the disputed domain names carries a risk of implied affiliation or association, as stated in section 2.5.1 of the WIPO Overview 3.0.
In the absence of a Response, the Respondent has failed to demonstrate any of the nonexclusive circumstances evidencing rights or legitimate interests under the Policy, paragraph 4(c) or provide any other evidence of rights or legitimate interests in the disputed domain names. The Panel is rather convinced that the Respondent has deliberately chosen the disputed domain names in order to cause confusion with the Complainant’s trademarks among Internet users. Bearing this in mind, the Panel does not see sufficient basis for assessing any kind of bona fide offering of goods or services by the Respondent.
Consequently, the Panel finds that the Complainant has satisfied the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
It is obvious to the Panel that at the date of registration of the disputed domain names, the Respondent was well aware of the Complainant’s UNLIMITED VACATION CLUB and APPLE VACATIONS trademarks. The Panel is further convinced that the Respondent deliberately registered non-dictionary misspellings of the Complainant’s trademarks in order to create confusion among Internet users for illegitimate and bad faith purposes. In fact, the Panel cannot conceive of any plausible and legitimate use of the disputed domain names that would be in good faith, except with an authorization of the Complainant.
Also, the Respondent’s failure to respond to the Complaint supports the conclusion that it has registered and is using the disputed domain names in bad faith.
The fact that the disputed domain names are currently inactive or resolve to parking pages does not change the Panel’s findings in this respect.
Taking all facts of the case into consideration, the Panel is convinced that this is a typical typosquatting case, which the UDRP was designed to stop. In view of the Panel, the disputed domain names were registered and are being used in bad faith and that the Complainant consequently has satisfied the third element of the Policy, namely, paragraph 4(a)(iii) of the Policy.
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 names <unlimetedvacationclub.com>, <applevcacations.com>, <applevacatiins.com>, <applevacationes.com>, and <applevacatoons.com> be transferred to the Complainant.
Date: March 16, 2020