Generic Top Level Domain Name (gTLD) Decisions

Complainant is Gorstew Limited and Unique Vacations Inc., Kingston, JAMAICA ("Complainant") represented by David B. Newman, of Sonnenschein Nath & Rosenthal. Respondent is Changes in L'Attitudes, Clearwater, FL, USA ("Respondent").

The domain name at issue is "sandalschanges.com" registered with Network Solutions.

On April 9, 2001, pursuant to Complainant’s request to have the dispute decided by a one member Panel, the Forum appointed James P. Buchele as Panelist. The undersigned certifies that he has acted independently and impartially and to the best of his knowledge, has no known conflict in serving as a panelist in this proceeding.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on March 1, 2001; the Forum received a hard copy of the Complaint on March 2, 2001.

On March 2, 2001, Network Solutions confirmed by e-mail to the Forum that the domain name "sandalschanges.com" is registered with Network Solutions and that Respondent is the current registrant of the name. Network Solutions has verified that Respondent is bound by the Network Solutions 4.0 registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On March 14, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 3, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@sandalschanges.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its Decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from Respondent.

Complainant requests that the domain name be transferred from the Respondent to the Complainant.

A. Complainant alleges the following:

3) Respondent registered and used the disputed domain name in bad faith

B. Respondent

Respondent has not submitted a response in this matter.

Complainant, Gorstew Limited & Unique Vacations, Inc., owns the registered mark SANDALS, which it has used in connection with hotel reservations services, sightseeing tours and motor vehicle transportation since 1981. In addition, Complainant has used its mark on a variety of merchandise associated with hotel and hospitality services.

Respondent, Changes in L’ Attitudes, is a retail travel agent and does not own, operate, or manage any of the hotels associated with Complainant’s mark. To date, Respondent has used the disputed domain name in connection with the sale of various vacation packages.

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:

(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(2) the Respondent has no rights or legitimate interests in respect of the domain name; and

(3) the domain name has been registered and is being used in bad faith.

Complainant’s rights are evidenced by its registered mark, SANDALS.

Respondent’s domain name, sandalschanges.com, is found to be confusingly similar because it is combines Complainant’s mark with a generic term. See L.L. Bean, Inc. v. ShopStarNetwork, FA 95404 (Nat. Arb. Forum Sept. 14, 2000) (finding that combining the generic word "shop" with the Complainant’s registered mark "llbean" does not circumvent the Complainant’s rights in the mark nor avoid the confusing similarity aspect of the ICANN Policy); General Electric Co. v. Forddirect.com, Inc., D2000-0394 (WIPO June 22, 2000) (finding that adding the generic term "direct" on to the Complainant’s marks (GE CAPTIAL and GECAL) does not alter the underlying mark held by the Complainant, and thus the Respondent’s domain names are confusingly similar); see also Treeforms, Inc. v. Cayne Indus. Sales Corp., FA 95856 (Nat. Arb. Forum Dec. 18, 2000) (finding that confusion would result when Internet users, intending to access Complainant’s web site, think that an affiliation of some sort exists between the Complainant and the Respondent, when in fact, no such relationship would exist).

The Panel finds that Policy ¶ 4(a)(i) has been satisfied.

The evidence shows Respondent is not commonly known by the disputed domain name, nor is Respondent licensed or otherwise authorized to use the Complainant’s famous mark. See State Farm Mut. Auto. Ins. Co. v. LaFaive, FA 95407 (Nat. Arb. Forum Sept. 27, 2000) (finding that "unauthorized providing of information and services under a mark owned by a third party cannot be said to be the bona fide offering of goods or services"); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark or never applied for a license or permission from Complainant to use the trademarked name).

Also, Respondent asserted no rights or legitimate interests in the disputed domain name; thus, the Panel is entitled to infer Respondent has no such rights or legitimate interests in the domain name. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names"); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that under certain circumstances the mere assertion by the Complainant that the Respondent has no right or legitimate interest is sufficient to shift the burden of proof to the Respondent to demonstrate that such a right or legitimate interest does exist).

Consequently, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.

Complainant has shown Respondent registered the disputed domain name intentionally to attract Internet users to its competing web site, strictly for commercial gain. See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the Respondent had engaged in bad faith use and registration by linking the domain name to a website that offers services similar to Complainant’s services, intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s marks); see also Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the Complainant’s well known marks, thus creating a likelihood of confusion strictly for commercial gain).

Moreover, Respondent’s use of the disputed domain name prevents Complainant from reflecting its mark in a corresponding domain name. See Toyota Jidosha Kabushiki Kaisha d/b/a Toyota Motor Corporation v. S&S Enterprises Ltd., D2000-0802 (WIPO Sept. 9, 2000) (finding that "Registration of a domain name (by Respondent that incorporates another’s trademark) goes further than merely correctly using in an advertisement the trademark of another in connection with that other’s goods or services: it prevents the trade mark owner from reflecting that mark in a corresponding domain name").

Finally, Respondent is Complainant’s competitor, and its use of the disputed domain name serves to disrupt Complainant’s business. See Surface Protection Indus., Inc. v. The Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that given the competitive relationship Complainant and Respondent, Respondent likely registered the contested domain name with an intent of disrupting Complainant's business resulting from subsequent user confusion).

Therefore, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.

Having established all three elements required under ICANN Policy, the Panel concludes that the requested relief shall be and is hereby granted.

Accordingly, it is Ordered that the domain name, sandalschanges.com, be transferred from Respondent to Complainant.