The Complainant is CSX IP, Inc., Sulphur Springs, West Virginia, United States of America, represented by McGuireWoods LLP, United States of America.
The Respondent is Domaincar, Panama.
2. The Domain Name and Registrar
The disputed domain name <greenbrierspa.com> (the “Domain Name”)
is registered with Capitoldomains, LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 13, 2006. On March 14, 2006, the Center transmitted by email to Capitoldomains, LLC a request for registrar verification in connection with the domain name(s) at issue. On March 15, 2006, Capitoldomains, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 proceedings commenced on March 17, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was April 6, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 10, 2006.
The Center appointed Adam Samuel as the sole panelist
in this matter on April 18, 2006. 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
The Complainant has registered The Greenbrier Spa
as a trademark with the United States Patent and Trademark Office in August
2004. The Complainant has also registered twelve other trademarks beginning
The Greenbrier with the United States Patent and Trademark Office between March
1988 and April 2005.
5. Parties’ Contentions
A. Complainant
The Complainant runs a holiday facility in White Sulphur Springs, West Virginia. The domain name in dispute here is nearly identical to the Complainant’s trademark The Greenbrier Spa and very similar to numerous other trademarks that the Complainant has, all of which incorporate the word “Greenbrier”.
The Respondent has no rights or legitimate interest in the term “Greenbrier”. A search of the United States Patent and Trademark Office for that word failed to reveal anyone with any relationship to the Respondent. A Google search failed to reveal any websites that indicated that the Respondent had any rights or legitimate interest in the domain name.
The domain name was registered and is being used in bad faith. It directs internet users to a site promoting the Respondent’s own websites and those of the Complainant’s competitors. The Respondent has attempted to attract users to the website for commercial gain by creating a likelihood of confusion with the Complainant’s trademark. The web site’s references to “sponsored links” and “related websites” further heighten this likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of Respondent’s web site or services.
When an Internet user enters the web site or clicks any of the links on this web site, the Internet user is bombarded by additional browser windows, in which windows are promotions for various contests, dinners, and assorted advertisements. Based on this activity, it appears that the Respondent engages in a type of Internet marketing typically associated with disreputable establishments that seek to stimulate traffic to various promotions and advertisements by trapping the unsuspecting Internet user. It is well settled that such behavior is indicative of bad faith.
The Respondent is associated with to or the same entity as Unasi Inc and/or Unasi Management Inc. Unasi was the registrant of the domain name in November 2005 and is also located in Panama. In a previous WIPO case, it emerged that <domaincar.com> was owned by Unasi Management Inc. Unasi regularly cybersquats according to other WIPO cases.
B. Respondent
The Respondent did not reply to the Complainant’s
contentions.
6. Discussion and Findings
Under the Policy, the Complainant must prove that
(i) the domain name is identical or confusingly similar to a trademark or service
mark in which it has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the
domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has trademark rights in the name Greenbrier Spa. The domain name is <Greenbrierspa.com>. It is hard to imagine a domain name more confusingly similar to a registered trademark. The first element is therefore established.
B. Rights or Legitimate Interests
There is no evidence to suggest that the Respondent has any rights or legitimate interests in respect of the domain name. The Complainant appears to have searched both Google and the US Patent and Trademark Office’s database for evidence of some such right or interest. The Respondent has not replied to the Complaint.
The Respondent is not called ‘Greenbrier’ and does not appear to trade under that name. There is no evidence that the owner of the trademark in question, the Complainant, has authorized it to use the trademark. The Respondent has never asserted any rights or legitimate interests in the name. For these reasons and on the basis of the case file, notably the absence of a Response, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the domain name.
C. Registered and Used in Bad Faith
The domain name links to a website promoting a variety of spa holidays and other services. These currently include both the Complainant’s spa hotel and products and services of a number of the Complainant’s competitors, such as The Homestead spa hotel. There are also a number of links to various travel operators through which holidays can be bought. The website gives no indication that the site has no connection with the Complainant.
It is hard to believe that the Respondent could have selected this domain name without knowing of the Complainant’s product since the site is advertising the Greenbriers Hotel. Also, the word “Greenbriers” has no independent meaning in any language. At best, the Respondent must have suspected that the Complainant would have registered trademark rights in the name. Nevertheless, the Respondent used that name to attract visitors to its site knowing that the Complainant had not authorized it to do so. This provides clear evidence of the bad faith registration of the domain name.
The Respondent is using the Complainant’s trademark to attract visitors to a website to profit presumably through “click-throughs” to a number of travel operator sites. It is irrelevant to the question of bad faith as to whether this is likely to be successful.
The Panel in Banca di Roma S.p.A. v. Unasi Inc. a/k/a Domaincar,
WIPO Case No. D2006-0068 agreed that this type
of behaviour constituted bad faith. It said:
“The Respondent is linking the disputed domain name to a portal site
offering sponsored links. There, Internet users have access to a variety of
goods and services, among them websites of the Complainant’s competitors.
As described by the panelist in Deloitte Touche Tohmatsu v. Henry Chan,WIPO Case No. D2003-0584, such websites
offer a revenue program which pays domain name owners (in the particular case)
“50% of all revenues generated from searches, popunders, popups, and exit
popups” in respect of users directed to its website through the participants
domain name.
This leads the Panel to the conclusion that the Respondent
registered the domain name at issue to divert Internet users seeking information
about the Complainant’s products to a portal site offering sponsored links
and to share in revenues obtained from the diverted traffic. Even if internet
users would realize that the Respondent’s website is not connected with
the trademark owner, the Respondent is liable to profit from their initial confusion,
since they may still be tempted to click on sponsored links. In many previous
UDRP decisions, in some of them the Respondent was involved as a respondent
party as well, such exploitation of trademarks to obtain click-through commissions
from the diversion of internet users was held of use in bad faith (see e.g. Deloitte
Touche Tohmatsu v. Henry Chan, WIPO Case
No. D2003-0584; Mizuno Kabushiki Kaisha Corporation and Mizuno USA, Inc.
v. Henry Chan, WIPO Case No. D2004-0255;
Future Brands LLC v. Mario Dolzer, WIPO
Case No. D2004-0718; ACCOR v. Mr. Young Gyoon Nah, WIPO Case No. D2004-0681;
Bridgestone Corporation v. Horoshiy, Inc., WIPO
Case No. D2004-0795; Minka Lighting, Inc. d/b/a Minka Group v. Lee Wongi,
WIPO Case No. D2004-0984Members Equity
PTY Limited v. Unasi Management Inc., WIPO
Case No. D2005-0383; Claire’s Stores, Inc., Claire’s Boutiques,
Inc., CBI Distributing Corp. v. La Porte Holdings, WIPO
Case No. D2005-0589); Gianfranco Ferre’ S.p.A. v. Unasi Inc.,WIPO Case No. D2005-0622; L’Oreal,
Biotherm, Lancome Parfums et Beauté & Cie v. Unasi, Inc., WIPO
Case No. D2005-0623). In the absence of any reply of the Respondent, the
Panel can make a reasonable inference that the Respondent’s website generates
revenue for the Respondent in that manner.”
As the Complainant points out, Unasi has an extensive
record of being involved in cybersquatting. The title of Banca di Roma S.p.A.
v.Unasi Inc. a/k/a Domaincar, WIPO Case
No. D2006-0068 suggests a close connections between the respondent and Unasi.
This all supports a conclusion that the Respondent’s behaviour is not
an accident but a concerted attempt to use the Complainant’s and other
company’s trademarks for its own gain. As the Panel in Banca di Roma
S.p.A. v. Unasi Inc. a/k/a Domaincar, WIPO
Case No. D2006-0068 commented:
“Moreover, the Respondent has been involved
as a respondent in at least 30 UDRP cases which ended all with the transfer
of the disputed domain names to the complainants (see e.g. Deutsche Telekom
AG v. Unasi Management, Inc. WIPO Case
No. D2005-0423; Members Equity PTY v. Unasi Management, Inc, WIPO
case No. D2005-0383; Gianfranco Ferre’ S.p.a. v. Unasi Inc.,
WIPO Case No. D2005-0622; L’Oreal
Biotherm, Lancome Parfums et Bouteille & CIE v. Unasi Inc.,WIPO
Case No. D2005-0623; Red Bull GmbH v. Unasi Management, Inc., WIPO
Case No. D2005-0304). Therefore, the Panel believes that the Respondent
appears to be a prolific registrant of domain names which tends to support a
finding that the registration of the domain name at issue was for the purpose
of preventing the owner of the trademark from reflecting the trademark in a
corresponding domain name and that the Respondent has engaged in a pattern of
such conduct (paragraph 4(b)(ii) of the Policy). “
For all these reasons, the Panel concludes that the
domain name in dispute has been registered and is being used in bad faith.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, <greenbrierspa.com> be transferred to the Complainant.
Adam Samuel
Sole Panelist
Date: April 19, 2006
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