Complainant is Belmond Limited, United Kingdom, represented by CSC Digital Brand Services Group AB, Sweden.
Respondent is Belmond Spa, India.
The disputed domain name <belmondspa.com> is registered with GoDaddy.com, LLC (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 6, 2019. On August 7, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 8, 2019, 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 August 13, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 2, 2019. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on September 3, 2019.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on September 12, 2019. 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.
Complainant, Belmond Limited, is a hotel company and adventure travel operator. Complainant owns and operates a number of luxury hotels, river cruise, safari, and rail businesses in 24 countries. Complainant, through its subsidiary Belmond Interfin Ltd., owns a number of trademark registrations in connection with its hotels, businesses and related services, in a number of jurisdictions around the world, including, inter alia, a registration in the European Union (Registration No. 012293411, which issued to registration on October 13, 2015), and an International registration that has been extended to a number of jurisdictions around the world (Registration No. 1386978, which issued to registration on October 23, 2017). Complainant also owns and uses the domain name <belmond.com> to provide information regarding its luxury hotels, properties and businesses and to allow for the booking of reservations at such destinations.
Respondent registered the disputed domain name on May 29, 2019. Respondent has used the disputed domain name in connection with a website that promotes a luxury spa based in India.
On June 5, 2019, Complainant sent Respondent a cease-and-desist letter regarding Respondent’s registration and use of the disputed domain. Respondent did not respond to the letter. Complainant sent additional letters on June 17, 2019 and June 27, 2019, and it likewise appears that Respondent did not respond to these letters. The disputed domain name currently resolves to a website promoting a luxury spa in India using the name “Belmond Body Spa.”
Complainant contends that it owns rights in the BELMOND mark on account of its subsidiary’s trademark registrations for the BELMOND mark and its use of the BELMOND name and mark since 1976 in connection with its hotel properties and businesses. Complainant asserts that such rights arose before Respondent registered the disputed domain name.
Complainant argues that the disputed domain name is confusingly similar to the BELMOND mark as it fully incorporates the BELMOND mark at the head of the disputed domain name with the non-distinguishing descriptive term “spa.” In that regard, Complainant asserts that the addition of the term “spa” to the BELMOND mark increases the confusion as Complainant offers spa services and spa packages in connection with its luxury hotels to enhance guest experiences.
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name as Respondent (i) is not sponsored by or affiliated with Complainant, (ii) has not been given permission by Complainant to use the BELMOND mark, (iii) is using the disputed domain name to sell products and services that directly compete with Complainant’s own offerings, and (iv) registered and started using the disputed domain name well after Complainant had developed rights in the BELMOND mark in connection with its services.
Lastly, Complainant asserts that Respondent has registered and used the disputed domain name in bad faith given that Respondent knew, or should have known, of Complainant’s rights in the BELMOND mark, which is registered in numerous countries and used in connection with 45 luxury hotel, river cruise, safari and rail businesses in 24 countries. Complainant maintains that Respondent’s use of the disputed domain name constitutes a disruption of Complainant’s business given that the disputed domain name is confusingly similar to Complainant’s BELMOND mark and is being used to promote competing services. Complainant further maintains that the registration and use of the disputed domain name by Respondent is meant to cause confusion among Internet users as to the source of the disputed domain name and the luxury spa services being offered by Respondent. Finally, Complainant contends that Respondent has acted in bad faith by failing to respond to multiple cease-and-desist letters sent by Complainant’s representative concerning the disputed domain name.
Respondent did not reply to Complainant’s contentions.
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Here, although Respondent has failed to respond to the complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A Panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006‑0340.
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0 at section 1.2.1. Complainant has provided evidence that it owns trademark registrations, through its subsidiary, for the BELMOND mark in connection with its hotel and related services, which issued to registration before Respondent registered the disputed domain name. Complainant has also submitted evidence that it uses the BELMOND mark for its luxury hotel and related businesses.
With Complainant’s rights in the BELMOND mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain “.com”) is identical or confusingly similar with Complainant’s mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and, generally, panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is confusingly similar to the BELMOND mark as it incorporates the BELMOND mark in its entirety at the head of the disputed domain name. The addition of the descriptive term “spa” after the BELMOND mark does not distinguish the disputed domain name. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s BELMOND mark and in showing that the disputed domain name is identical or confusingly similar to that trademark.
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shiftsto the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
The evidence submitted in this proceeding shows that Complainant adopted and has been using the BELMOND mark in connection with its luxury hotel and related services prior to Respondent’s registration of the disputed domain name. Moreover, as the evidence shows that Complainant has offered spa retreats and services in connection with its BELMOND luxury hotels, the fact that Respondent recently registered and began using the disputed domain name to promote a luxury spa facility and service in India under the name “Belmond Body Spa” suggests that Respondent is likely aware of Complainant and its luxury hotels and related businesses. Certainly a simple Internet search would have quickly revealed Complainant’s rights in the BELMOND name and mark in connection with luxury hotels and related services such as spa services. As Respondent has failed to appear in this proceeding, and has failed to respond to multiple cease-and-desist letters sent by Complainant, the Panel concludes that it is more likely than not that Respondent is using the disputed domain name, which is based on the BELMOND name and mark, for purposes of creating an association between Respondent’s luxury spa and Complainant or the BELMOND luxury hotels and related businesses. Such use of the disputed domain name for Respondent’s profit does not, and cannot, constitute a bona fide use or legitimate interest. WIPO Overview 3.0 at section 2.5.3.
In sum, given that Complainant has established with sufficient evidence that it owns rights in the BELMOND mark, and given Respondent’s above-noted actions and failure to file a response, the Panel concludes that Respondent does not have rights or legitimate interests in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case.
Given Respondent’s actions, as noted above, it is easy to infer that Respondent has registered and is using the disputed domain name in bad faith. As the dominant component of the disputed domain name is the BELMOND name and mark, consumers who come across the disputed domain name are likely to believe that the disputed domain name concerns or relates to spa services connected with the BELMOND luxury hotels and related high end businesses. Moreover, the fact that Respondent has failed to respond to multiple cease-and-desist letters sent by Complainant, and has failed to file a response in this matter, underscores the likelihood that Respondent was aware of Complainant and its BELMOND luxury hotels when Respondent registered the disputed domain name and then started using such to opportunistically promote Respondent’s spa facility and services under the “Belmond” name. Such registration and use of the disputed domain to attract web users to a website promoting competing services under the same name and mark of Complainant constitutes bad faith. WIPO Overview 3.0 at section 3.1.4.
Accordingly, the Panel finds that Complainant succeeds under this element 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 name, <belmondspa.com>, be transferred to Complainant.
Date: September 26, 2019
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