WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
La Favorita s.r.l. v. Haji Musa
Case No. D2020-0239
1. The Parties
The Complainant is La Favorita s.r.l., Italy, represented by Studio Legale Giuliano De Luca, Italy.
The Respondent is Haji Musa, United States of America (“United States”).
2. The Domain Name and Registrar
The disputed domain name <hotelafavorita.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 30, 2020. On January 30, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 31, 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 February 20, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 11, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 12, 2020.
The Center appointed Adam Taylor as the sole panelist in this matter on March 29, 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.
4. Factual Background
Since 2010, the Complainant has operated a hotel in Sorrento, Italy, called “Hotel La Favorita”. As well as featuring in articles in national newspapers, the hotel has garnered almost 2,000 “excellent” reviews on TripAdvisor and has won a number of travel awards.
The Complainant’s own website is located at “www.hotellafavorita.com”.
The disputed domain name was registered on October 14, 2019.
The Complainant suffered a cyberattack at around this time, following which the disputed domain name was used to send emails to the Complainant’s customers impersonating the Complainant and using fake invoices to request payments. Some of the Complainant’s customers lost money as a result.
5. Parties’ Contentions
A summary of the Complainant’s contentions is as follows:
The disputed domain name is confusingly similar to the Complainant’s unregistered trade mark and domain name. It differs only by excluding the letter “L”. The disputed domain name remains phonetically identical to the Complainant’s mark.
The Respondent lacks rights or legitimate interests in the disputed domain name.
The Complainant has not authorised the Respondent to use its mark.
The Respondent has not used or prepared to use the disputed domain name for bona fide offering of goods or services. The Respondent used the disputed domain name only to send scam emails posing as the Complainant. Such use cannot be bona fide.
The Respondent is not commonly known by the disputed domain name and is not making a legitimate noncommercial or fair use of the disputed domain name.
The disputed domain name was registered and is being used in bad faith, namely to defraud the Complainant’s guests.
The Respondent owns over 100 domain names that are similar to the trade marks of other companies.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under the Policy, the Complainant is required to prove on the balance of probabilities that:
- the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights;
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name has been registered and is being used in bad faith.
. Identical or Confusingly Similar
The Complainant has established unregistered trade mark rights in the mark HOTEL LA FAVORITA by virtue of its trading activity under that name for some 10 years.
Section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) makes clear that a domain name which consists of a common, obvious, or intentional misspelling of a trade mark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element. That applies in this case as the disputed domain name differs from the trade mark only by converting the letters “LL” into a single letter “L”.
The Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trade mark.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
As explained in section 2.1 of WIPO Overview 3.0 , the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element.
Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark.
Paragraph 4(c) of the Policy gives examples of circumstances, which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests in the disputed domain name.
As to paragraph 4(c)(i) of the Policy, the Panel has concluded below that the Respondent has used the disputed domain name for fraudulent purposes. Such use of the disputed domain name could not be said to be bona fide. Plainly paragraphs 4(c)(ii) or (iii) of the Policy do not apply in the circumstances of this case either.
The Panel finds that the Complainant has established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent.
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The Complainant has produced evidence that the disputed domain name has been used for an email address from which scam emails were sent impersonating the Complainant for the purpose of defrauding the Complainant’s customers.
Noting the nature of the disputed domain name, and given the evidence of use of the disputed domain name for a fraudulent purpose, the Panel readily concludes that it was registered and is being used in bad faith by the Respondent.
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 <hotelafavorita.com> be transferred to the Complainant.
Date: April 10, 2020