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Winshape Centre, Inc. v. Domains Ventures [2005] GENDND 1967 (4 November 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Winshape Centre, Inc. v. Domains Ventures

Case No. D2005-0885

1. The Parties

The Complainant is Winshape Centre, Inc., Georgia, United States of America, represented by Troutman Sanders, LLP, United States of America.

The Respondent is Domains Ventures, Fujian, China.

2. The Domain Name and Registrar

The disputed domain name <campwinshape.com> is registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 18, 2005. On August 19, 2005, the Center transmitted by email to Moniker Online Services, LLC a request for registrar verification in connection with the domain name at issue. On September 9, 2005, Moniker Online Services, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on September 14, 2005. The Center verified that the Complaint together with the amendment to 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 September 23, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was October 13, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 14, 2005.

The Center appointed John Lambert as the sole panelist in this matter on October 21, 2005. 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 offers summer camping holidays for children in Georgia. Children come to the camp from various parts of America. Particulars of those holidays appear at “www.winshape.com/camp/”. The home page of that site indicates that camping is one of a number of services (or “ministries”) of the WinShape Foundation. The same page describes the Foundation as “a non-profit organization and charitable foundation” with the goal of shaping winners.

The Complainant is the proprietor of the US service mark CAMP WINSHAPE which is registered for summer camp services for boys and girls in class 41 under number 1,666,136. It claims to have used that mark in relation to those specified services since June 1985 and to have spent substantial sums of money advertising and promoting its camps by reference to the mark. That is corroborated by samples of its brochures which are annexed to the Complaint together with references to media reports mentioning that company’s services by reference to the CAMP WINSHAPE service mark.

Very little is known of the Respondent other than its name and contact details. The Complainant has exhibited a long list of domain names that have been registered by a company called “Domain Asia Ventures” of 255 Xiaoxue Road in Xiamen. That is almost the same name as the Respondent, “Domains Ventures”, and its address is 136Xiaxoue Road, Xiamen. However, the only evidence offered by the Respondent to link those entities is a footnote alleging that a “whois search” on <providiancreditcards.com> identifies “Domains Ventures” of 136 Xiaoxue Road as the registrant. A “Whois” search of that domain name by the Panel on October 31, 2005, produced the same result but searches of <nokiatires.com>, <myparentloans.com> and <mortgagefreeaustralia.com> immediately afterwards revealed “Domain Asia Ventures” of 255 Xiaoxue Road, Virtual Sky of George Town, Grand Cayman and Mortgage Free Australia Pty Ltd of Leederville, Australia as the registrants of those domain names.

The disputed domain name is the URL for a portal with links to children’s holiday camps in various parts of the World and while there are buttons for “Camp Winshape” and “Camp Winshape for Girls” they do not seem to lead to the Complainant’s website.

5. Parties’ Contentions

A. Complainant

The Complainant says that all three elements of paragraph 4(a) of the Policy are present.

As to the requirement that the disputed domain name be identical or confusingly similar to a trademark or service mark in which the Complainant has rights, the obvious visual, aural and conceptual similarities between the disputed domain name and the registered service mark are relied upon.

On whether the Respondent has rights or legitimate interests in respect of the disputed domain name, the Complainant alleges that:

(a) The registered service mark is associated with the Complainant and none other in the provision of camp services.

(b) The Respondent is not known by the name “WinShape” nor is it associated with the Complainant or its services.

(c) The absence of any reference to the Respondent in corroborated by an exhibited Google search for “camp winshape”.

(d) The Respondent has not registered CAMP WINSHAPE as a trademark or service mark in the United States of America, United Kingdom of Great Britain and Northern Ireland, the European Union or Canada though the Complainant does not say whether the Respondent has registered the sign in China.

(e) The Respondent uses the disputed domain name as the URL for a portal that distracts potential customers.

(f) The Respondent makes no legitimate, non-commercial or fair use of the disputed domain name.

(g) The Respondent is not licensed or authorized to use the Complainant’s service mark.

On the final question of whether the disputed domain name has been registered, and is being used, in bad faith the Complainant relies on:

(a) the absence of any legitimate or non-commercial business under CAMP WINSHAPE or any colorably similar sign;

(b) the Respondent’s appropriation of a generic top level domain name similar to the Complainant’s registered service mark;

(c) the Respondent’s flouting of the Complainant’s service mark;

(d) the diversion of traffic from the Complainant’s site;

(e) the Respondent’s unauthorized use of the Complainant’s mark to attract traffic to its side;

(f) the registration by a company with a similar name of several hundred other domain names; and

(g) various causes of action under various US federal statutes and at common law.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy requires a Complainant to prove that:

(i) the disputed domain name is identical or confusingly similar to trademark or service mark in which the Complainant has rights;

(ii) the Respondent has no rights or legitimate interest in respect of the disputed domain name; and

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

Paragraph 4(b) provides certain circumstances from which bad faith may be inferred and paragraph 4(c) circumstances that demonstrate that a Respondent has rights or legitimate interests in a domain name.

A. Identical or Confusingly Similar

As the registered proprietor of the service mark mentioned above, it is established beyond peradventure that the Complainant has rights in the mark CAMP WINSHAPE. Even if that mark had not been so registered, the Panel would have found that the Complainant had rights in it at common law by virtue of the Complainant’s use of that mark in relation to children’s holiday camps since 1985, and its expenditure on advertising and promotion. The disputed domain name differs from the mark only in inessentials. The first requirement of the Policy is satisfied.

B. Rights or Legitimate Interests

There are no materials to indicate or imply, in accordance with paragraph 4(c) of the Policy, that the Respondent has any rights or legitimate interests in respect of the disputed domain name. Paragraph 4(c) of the Policy states as follows:

“Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”

The Complainant has proved a prima facie case of the Respondent’s lack of rights and legitimate interests to the domain name. The Respondent has not rebutted the Complainant’s showing. Accordingly, the second requirement of the Policy is fulfilled.

C. Registered and Used in Bad Faith

One of the circumstances that paragraph 4(b) treats as evidence of registration and use of a domain name in bad faith is as follows:

“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of your web site or location or of a product or service on your web site or location.”

These circumstances apply to this case. Having entertained American schoolchildren at its camps for some 20 years it is obvious that some goodwill will have accrued to the CAMP WINSHAPE sign. Many of those who have enjoyed themselves there in the past will wish to return in the future. Some are likely to recommend holidays in the Complainant’s camps to friends and relations. It is probable that at least some of those persons will enter the disputed domain name into their browsers in the expectation that that domain name has been registered by or on the authority of the Complainant and that it will lead either to the Complainant’s site or to a site affiliated with, or endorsed by, the Complainant. The Respondent’s site links to other holiday camp websites. It is not out of the question that at least some of those contemplating a holiday in the Complainant’s camps will be tempted to book a holiday with one of the those competing companies.

In the light of that evidence it is possible to infer registration and use in bad faith. It follows that the third requirement of the Policy is satisfied.

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, <campwinshape.com> be transferred to the Complainant.

John Lambert
Sole Panelist

Dated: November 4, 2005