WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Coryn Group II, LLC v. Teygan Powell / Apple Leisure Group
Case No. D2020-1151
1. The Parties
1.1 The Complainant is The Coryn Group II, LLC, United States of America (“United States”), represented by Norvell IP llc, United States.
1.2 The Respondent is “Teygan Powell”, Canada / Apple Leisure Group, Canada.
2. The Domain Name and Registrar
2.1 The disputed domain name <appleleisure-group.com> (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
3.1 The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 8, 2020. On May 8, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 9, 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.
3.2 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”).
3.3 In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 22, 2020. In accordance with the Rules, paragraph 5, the due date for Response was June 11, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 17, 2020.
3.4 The Center appointed Matthew S. Harris as the sole panelist in this matter on June 23, 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
4.1 The Complainant is located in the United States and is the intellectual property owner for the Apple Leisure Group (“ALG”) of companies, of which it forms a part. ALG’s business dates back to 1969 and provides travel, hospitality and leisure management group services worldwide; although it would appear that its services are primarily directed to persons in North America and in particular the United States. These services include the provision of charter flights and all-inclusive holiday packages to Mexico, the Dominican Republic, and Jamaica.
4.2 The Complainant is the owner of various registered trade marks that comprise the words “Apple Leisure Group”. It is the owner of United States registered trade mark no. 3,522,316 registered on October 21, 2008 for the standard character mark APPLE LEISURE GROUP in classes 39 and 43. It also owns similar marks that were registered in Mexico and the Dominican Republic in 2013.
4.3 ALG has since December 20017 promoted its services from a website operating from the domain name <appleleisuregroup.com>. It has also engaged in extensive marketing by way of direct mail and in magazines.
4.4 The Domain Name was registered on April 13, 2020. The WhoIs registration details for the Domain Name appear to record an individual and the “Apple Leisure Group” as the registrant of the Domain Name and provide a Canadian address and telephone number. However, these details are false, comprising an address and telephone number having no associated with ALG and belonging to a Canadian recruitment agency based in Toronto. There is also no suggestion that this Canadian recruitment agency is involved with the registration.
4.5 Initially, the Domain Name was used to redirect internet users to the Complainant’s website. As at the date of this decision the Domain Name displays a page indicating that the account associated with the Domain Name has been suspended.
5. Parties’ Contentions
5.1 In its Complaint the Complainant refers to its business and registered trade marks. It also claims common law trade mark rights in APPLE LEISURE GROUP. It describes how the Domain Name has been used to redirect internet users to its own website and how the registration details given for the Domain Name are false.
5.2 The Complainant claims that the Domain Name is being used or will be used to further some fraudulent scam or phishing scheme designed to convince customers that the Domain Name and Respondent are associated with the Complainant and ALG. No direct evidence is offered to the effect that the Domain Name has actually been used in this way. But it is claimed that this can be inferred, inter alia, from the fact that the Complainant has recently suffered from a spate of cases where domain names that appear to relate to the Complainant have been registered and then used for emails from persons posing as employees of Complainant offering consumers fake promotional deals in order to defraud those consumers into providing their financial information.
5.3 In support of these contentions it refers to the following UDRP decisions:
- The Coryn Group II, LLC, AMResorts, L.P. v. JD Leon,
WIPO Case No. D2019-1466 (<amresorts.club>).
- The Coryn Group II, LLC, AMResorts, L.P. c. Javier Pérez, WIPO Case No. D2019-1805 (<am-rewards.com>).
- The Coryn Group II, LLC and AMResorts, L.P. v. Rollyn Renstrom, WIPO Case No. D2019-2401 (<amresortsgrp.com>).
- The Coryn Group II, LLC, AMResorts, L.P. c. Oneandone Private Registration / Javier Pérez, WIPO Case No. D2019-2400 (<amresortsmexico.com>).
- The Coryn Group II, LLC and AMResorts, L.P. v. Albert Rodriguez, WIPO Case No. D2019-2623 (<corporationamrewards.com> and <corporationamresorts.com>).
- The Coryn Group II, LLC, AMResorts, L.P. v. Jose Diaz, WIPO Case No. D2019-2624 (<amresortsclubvacations.com>, <recompensasamresorts.com> and <amrewardsmx.com>).
- The Coryn Group II, LLC y AMResorts, L.P. c. Oneandone Private Registration / Javier Perez, WIPO Case No. D2019-2774 (<amresortspromotions.com>).
- The Coryn Group II, LLC v. Carolina Rodrigues, Fundacion Comercio Electronico, WIPO Case No. D2020-0168 (<unlimetedvacationclub.com>, <applevcacations.com>, <applevacatiins.com>, <applevacationes.com> and <applevacatoons.com>).
5.4 The Complainant contends that the Domain Name is nearly identical, and is thus confusingly similar to its trade marks.
5.5 It also contends that in the circumstances of this case it has more than satisfied the burden of showing that the Respondent lacks a right or legitimate interest in the Domain Name and it is now incumbent upon the Respondent to come forward with evidence refuting the Complainant’s assertions and establishing the Respondent’s rights to, or interests in, the Domain Name.
5.6 So far as bad faith is concerned the Complainant contends that the Respondent at least has constructive notice of the Complainant’s marks and that prior panels have concluded that the imposition of constructive knowledge is appropriate in circumstances such as these; citing The Sportsman’s Guide, Inc. v. Modern Limited, Cayman Islands, WIPO Case No. D2003-0305 (June 18, 2003). It also contends that the Respondent has actual knowledge of the Complainant, as is said to be evidenced by the form of the Domain Name and the redirection to the Complainant’s website. Finally, it maintains that the Respondent’s continued ownership of the Domain Name poses a threat to the Complainant that the Respondent will utilise the Domain Name to create a false website and/or in email addresses used to commit infringing and/or fraudulent acts. This is said to be sufficient to demonstrate bad faith registration and use.
5.7 The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 There are no exceptional circumstances within paragraph 5(f) of the Rules so as to prevent this Panel from determining the dispute based upon the Complaint, notwithstanding the failure of the Respondent to lodge a Response.
6.2 Notwithstanding the default of the Respondent, it remains incumbent on the Complainant to make out its case in all respects set out in paragraph 4(a) of the Policy. Namely, the Complainant must prove that:
(i) the Domain Names are identical or confusingly similar to a trade mark or service mark in which the Complainant has rights (paragraph 4(a)(i)); and
(ii the Respondent has no rights or legitimate interests in respect of the Domain Names (paragraph 4(a)(ii)); and
(iii) the Domain Names have been registered and is being used in bad faith (paragraph 4(a)(iii)).
6.3 However, under paragraph 14(b) of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate”.
A. Identical or Confusingly Similar
6.4 The Complainant has satisfied the Panel that it has registered trade rights for APPLE LEISURE GROUP in the form of a standard character mark. In order to satisfy the first element of the Policy it is usually sufficient for a complainant to show that the relevant mark is “recognizable with the disputed domain name”; as to which see section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). The Domain Name can only be sensibly read as the words “apple leisure group” in combination with the “.com” generic Top Level Domain. This is particularly so given that spaces cannot form part of a domain name and are conventionally either omitted or replaced with a hyphen.
6.8 The Complainant has, therefore, satisfied the Panel that the Domain Name is confusing similar to its trade mark and has thereby made out the requirements of paragraph 4(a)(i) of the Policy
B. Rights or Legitimate Interests and Registered and Used in Bad Faith
6.9 It is usual for panels under the Policy to consider the issues of rights or legitimate interests, and registration and use in bad faith in turn. However, in a case such as this it is more convenient to consider those issues together.
6.10 The Complainant’s Complaint is a detailed one. There are some parts of the arguments put therein that the Panel was not convinced by. For example, the Complainant claims the Respondent has constructive notice of its trade marks, and relies upon a 2003 UDRP decision in support of that contention. But UDRP jurisprudence on this issue has considerably moved on since that date, as is addressed by section 3.2.2 and 3.2.3 of the WIPO Overview 3.0. For similar reasons, the Panel found references in the Complaint to United States case law of little assistance (see section 4.15 of the WIPO Overview 3.0).
6.11 That said, at its heart the Complainant’s case is straight forward. It is that the Domain Name has been registered and is being used to falsely impersonate the Complainant and that this has been most likely done for some fraudulent purpose. If that is so, the Complainant’s case succeeds. There are no rights or legitimate interests in holding a domain name for the purpose of engaging in fraudulent impersonation. Further, the registration and use of a domain name for such a purposes involves registration and use in bad faith (see, for example, Vestey Group Limited v. George Collins, WIPO Case No. D2008-1308). Such activity is a clear-cut example of bad faith registration and use of a domain name.
6.12 The Panel accepts that the Domain Name was indeed registered and is being held for such a purpose. That is clear from (a) the Domain Name itself, which is clearly intended to refer to the Complainant and involves a very minor variation on the domain name used by the Complainant to promote its business; (b) the redirection of internet users to the Complainant’s website; (c) the fact that false contact details have been provided in the WhoIs details for the Domain Name; and (d) the registrant organisation for the Domain Name is said to be the Complainant. There is also the Respondent’s non-participation in these proceedings despite the serious allegation that is being advanced in relation to the Respondent’s conduct. Further, the redirection by internet users to the Complainant’s own website falls within the scope of the example of circumstances indicating bad faith registration set out in paragraph 4(b)(iv) of the Policy.
6.13 The exact form that the Respondent’s fraudulent scheme has or will take is unclear. The Complainant’s assertion that this involves, or will involve, the Domain Name being used for emails that falsely claim to come from the Complainant’s employees, seems plausible and is consistent with the redirection to the Complainant’s own website. But there is no need to form a view as to whether this is or is not the case, to find in favour of the Complainant.
6.14 In the circumstances, the Complainant has made out the requirement of paragraph 4(a)(ii) and 4(a)(iii) of the Policy.
7.1 For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <appleleisure-group.com>, be transferred to the Complainant.
Matthew S. Harris
Date: July 3, 2020