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Société des Hôtels Méridien v. Mr. Cuneyt Ozarici [2005] GENDND 816 (3 May 2005)

World Intellectual Property Organization

WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Société des Hôtels Méridien v. Mr. Cuneyt Ozarici

Case No. D2005-0201

1. The Parties

The Complainant is Société des Hôtels Méridien, Paris, France, represented by Cabinet Degret, France.

The Respondent is Mr. Cuneyt Ozarici, of Turkey.

2. The Domain Names and Registrar

The disputed domain names <meridientravel.com>, <meridienyachting.com>, and <meridienyatching.com> are registered with iHoldings.com Inc. d/b/a DotRegistrar.com.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 22, 2005. On February 22, 2005, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with two of the domain names (<meridientravel.com> and <meridienyachting.com>) at issue. On February 23, 2005, iHoldings.com Inc. d/b/a DotRegistrar.com 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. On March 10, 2005, upon Amendment of the Complaint by the Complainant, the Center transmitted by email to iHoldings.com Inc. d/b/a DotRegistrar.com a request for registrar verification in connection with the third domain name at issue (<meridienyatching.com>). On March 11, 2005, iHoldings.com Inc. d/b/a DotRegistrar.com 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, 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 February 24, 2005. In accordance with the Rules, paragraph 5(a), the due date for Response was April 3, 2005. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 12, 2005.

The Center appointed Nasser A. Khasawneh as the sole panelist in this matter on April 19, 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 runs a world-famous chain of luxury hotels under the name Le Meridien. The Complainant’s hotels are present in cities throughout the world.

The Complainant or its subsidiary company, Meridien S.A., are the owners of various trademarks comprised or comprising the terms MERIDIEN or LE MERIDIEN. These trademarks are registered throughout the world in countries including Turkey, Germany, Japan, Malaysia, Jordan, and many more.

The Complainant is also the owner of various domain names including the words MERIDIEN or LE MERIDIEN.

5. Parties’ Contentions

A. Complainant

The Complainant contends that:

- The disputed domain names are confusingly similar to various trademarks in which the Complainant has rights. The Complainant argues that the disputed domain names totally reproduce the MERIDIEN mark a well as the most distinctive element of the Le MERIDIEN mark, in which the Complainant has rights. The only differences with the MERIDIEN mark, according to the Complainant, is in the addition of the suffix “.com” and of generic/descriptive terms relating to the field in which the Complainant operates, as well as to services the Complainant offers to its customers, i.e. travel and yachting.

- The Respondent has no rights or legitimate interests in respect of the disputed domain names. The Complainant argues, inter alia, that this is evidenced by the fact that the disputed domain names lead to inactive web pages; consequently, the Respondent is only preventing the Complainant from making use of the disputed domain names;

- The website was registered and is being used in bad faith. The Complainant contends that the Respondent is intentionally attempting to attract Internet users to his site by creating a likelihood of confusion with the Complainant’s trademarks. In this regard, the Complainant points out that the Complainant’s disputed domain names used to point to a website which was used as a cover for this allegedly cybersquatting activity. Also, the Complainant argues that bad faith is also proven by the degree of fame of the Complainant’s marks – it is highly unlikely that the Complainant would not have been aware of the of Complainant’s pre-existing trademark rights.

B. Respondent

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

6. Discussion and Findings

A. Identical or Confusingly Similar

The Panel has no doubt that the disputed domain names are confusingly similar to the registered trademarks of the Complainant. As argued successfully by the Complainant, the disputed domain names reproduce, letter by letter, the word MERIDIEN, in which the Complainant has longstanding and undisputed trademark rights.

The only difference between the disputed domain names and the trademarks of the Complainant lies in the addition of the descriptive terms “travel,” “yachting” and “yatching”. While one of these suffixes is an obvious typographical error, the words “travel” and “yachting” do not add a distinctive element to the disputed domain name that can be seen as taking the domain name outside the realm of the obvious similarity with the Complainant’s marks. In fact, these descriptive trademarks relate to fields of business and leisure with which the Complainant’s well-known marks are associated.

There have been several WIPO UDRP decisions that have held such descriptive terms incapable of negating the confusion or identity between the disputed domain name and the protected trademarks. The Panel cites by way of example the following UDRP decisions: Red Bull GmbH v. Chai Larbthanasub, WIPO Case No. D2003-0709, Expedia, Inc v. European Travel Network, WIPO Case No. D2000-0137, Expedia, Inc v. European Travel Network, WIPO Case No. D2001-0329, Meon Travel Limited v. Lawrence Snare, WIPO Case No. D2004-0831, and ACCOR v. Park Junghee, WIPO Case No. D2004-0478.

Consequently, the Panel finds for the Complainant on the first element of the Policy.

B. Rights or Legitimate Interests

The Complainant makes a compelling case that the Respondent has no rights or legitimate interests in respect of the domain names. First of all, the Panel takes note of the fact that the disputed domain names do not currently point to any active page. This fact, together with the fact that there is no response from the Respondent, establish a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names.

Secondly, there is nothing in the facts and circumstances that point to the Respondent having such a legitimate right or interest. One is guided in this regard by paragraph 4(c) of the Policy which lists three circumstances, each of which could prove the existence of rights or legitimate interests. None of these circumstances exist in this case. There is nothing to suggest that the Respondent is using the disputed domain names in connection with a bona fide offering of goods or services, that he is commonly known by the disputed domain names or that he is making legitimate noncommercial or fair use of the domain name. In fact, the record establishes, beyond reasonable doubt, that the opposite of each of these circumstances applies in this case.

Consequently, the Panel finds for the Complainant on the second element of the Policy.

C. Registered and Used in Bad Faith

At one point, before being warned by the Complainant, the Respondent was making use of the disputed domain names by directing Internet users to websites which seemed to be created for or by Complainant, displaying even Complainant’s copyrighted material (Annex 16 to the Complaint). At present, however, the Respondent is not making any use of the disputed domain names. The Panel views this case as one of “passive holding.”

In this regard, the Panel refers to the “WIPO Overview of WIPO Panel Views on Selected UDRP Questions.” The WIPO Overview presents the consensus view in WIPO decisions on the issue of passive holding as follows: “The lack of active use of the domain name does not as such prevent a finding of bad faith. The panel must examine all the circumstances of the case to determine whether respondent is acting in bad faith. Examples of circumstances that can indicate bad faith include complainant having a well-known trademark, no response to the complaint, concealment of identity and the impossibility of conceiving a good faith use of the domain name.” Apart from the “concealment of identity” element, the Panel finds that all the other examples in this consensus view apply to this case. Firstly, the Panel notes that the Complainant’s trademarks are well-known marks and it is highly unlikely that the Respondent had no knowledge of these marks. Secondly, the Respondent has failed to respond to the Complaint. Thirdly, it is difficult, on the basis of the record, to conceive of any good faith use by the Respondent of the disputed domain names.

Consequently, the Panel finds that the third test of the Policy is met, and the disputed domain names were registered and 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 names, <meridientravel.com>, <meridienyachting.com>, and <meridienyatching.com> be transferred to the Complainant.

Nasser A. Khasawneh
Sole Panelist

Dated: May 3, 2005