Administrative panel decision m/s Daiwik Hotels Pvt. Ltd V. Senthil Kumaran S, Daiwik Resorts




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ARBITRATION
AND
MEDIATION CENTER



ADMINISTRATIVE PANEL DECISION

M/s Daiwik Hotels Pvt. Ltd v. Senthil Kumaran S, Daiwik Resorts

Case No. D2015-1384



1. The Parties
The Complainant is M/s Daiwik Hotels Pvt. Ltd from Kolkata, West Bengal, India, represented by M/s Cherian & Associates, India.
The Respondent is Senthil Kumaran S, Daiwik Resorts from Varkala, Kerala, India.

2. The Domain Name and Registrar
The disputed domain name is registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 6, 2015. On August 7, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 8, 2015, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Complainant filed an amendment to the Complaint on August 22, 2015.
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” 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 the Respondent of the Complaint, and the proceedings commenced on August 24, 2015. On August 24, 2015, the Center received an informal communication from the Respondent. In accordance with the Rules, paragraph 5, the due date for Response was September 13, 2015. A formal Response was not submitted.
The Center appointed Harini Narayanswamy as the sole panelist in this matter on September 21, 2015. 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 chain of hotels located in places of pilgrimage in India. It operates its hotels under the trademark DAIWIK. The Complainant has obtained a multi class trademark registration for the device trademark DAIWIK HOTELS under registration number 2098155, dated February 10, 2011 in classes 16, 39, 41, 43 and 44. The disputed domain name was created on June 6, 2014.

5. Parties’ Contentions
A. Complainant
The Complainant states that it is part of the business group Consolidated Entertainment Private Limited. It began using the trademark DAIWIK in 2008 and then started using it for its pilgrim hotel chain from 2010. The Complainant launched its first hotel in Rameswaram in 2011 and next in Shirdi in 2014. Other hotels in Thirupathy and Dwaraka are under construction. The Complainant states that it is listed in all major travel portals in India. Tourists, both national and international, are attracted due to the uniqueness of its hotels.
The Complainant states that its mark has become distinctive due to extensive use in relation to its hotel services. The Complainant further argues that its mark is inherently distinctive as “Daiwik” is an arbitrary word. The Complainant also contends that its hotel services are availed by thousands of people and its mark has been extensively advertised in magazines, newspapers, mailers, newsletters, trade shows, seminars and websites that have wide spread circulation. The Complainant has provided links to various articles and reviews in news portals as evidence of third party and media recognition of its mark and adds that it services are mainly promoted through its own website.
The Complainant states that it has trademark rights as per the law and argues that any use of its well known mark by a third party would be infringing use to exploit the goodwill built by the Complainant. The Complainant contends that its officers came to know of the disputed domain name on April 5, 2015. The Complainant claims that on making enquiry, no hotel was found functioning at the address mentioned on the Respondent’s website. The Complainant has provided as evidence a print out from “www.pularigarden.com” showing another address.
The Complainant states the disputed domain name is identical or confusingly similar to its trademark as it contains the entire mark. The Complainant argues that the generic word “resorts” used by the Respondent does not interfere with the finding of confusing similarity.
The Complainant argues that the Respondent has no rights or legitimate interest in the disputed domain name, as the Respondent is not licensed or authorized to use its mark. The Respondent is not offering any bona fide goods or services and no hotel or resort is being operated by the Respondent at the address given on the Respondent’s website. However, the disputed domain name is only used to mislead customers by creating a false impression of association with the Complainant.
The Complainant further argues that the disputed domain name was registered in bad faith and is being used in bad faith. The Complainant states it has prior right in its mark and due to its widespread use, its mark is well known. There is likelihood of confusion and deception by the Respondent’s use of the disputed domain name and the Complainant therefore requests for the transfer of the disputed domain name.
B. Respondent
No formal Response has been submitted by the Respondent in these proceedings. On August 24, 2015, the Center received an informal communication from the Respondent by email. In that email communication, the Respondent has merely stated, “The business is not in operations at all. We are not responsible”.

6. Discussion and Findings
To obtain the remedy of transfer of the disputed domain name, the Policy states that the Complainant has to establish three elements under paragraph 4(a).
(i) The disputed domain name is identical or confusingly similar to a mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name was registered and is being used in bad faith by the Respondent.
A. Identical or Confusingly Similar
The first element under paragraph 4(a) of the Policy requires the Complainant to prove that the disputed domain name is identical or confusingly similar to a mark in which it has rights.
The Complainant has adduced evidence in these proceedings that establishes its rights in the DAIWIK HOTELS trademark. The Complainant’s statutory rights in the mark are established from the copy of its registered trademark certificate. The Complainant has also shown use of its mark in commerce, such as media recognition of the mark, awareness of the mark among the purchasing public due to its extensive use, advertisement and promotion of the mark. Based on the evidence and material on record, it is found that the Complainant has successfully established its statutory and common law rights in the DAIWIK HOTELS mark.
The disputed domain name reproduces the first part of the trademark, namely DAIWIK, and the word “resorts”. The dictionary word “resorts” used by the Respondent is one that is suggestive of the Complainant’s business as the word “resorts” is essentially synonymous to the word “hotels”. The Panel finds that by using “Daiwik” in combination with the generic word “resorts”, it renders the disputed domain name confusingly similar to the Complainant’s mark. An unsuspecting customer or Internet user is likely be confused by the disputed domain name due to the similarity of the words “hotels” and “resorts” and it is likely that such a user may associate the disputed domain name with the Complainant’s business.
Furthermore, it is a well accepted proposition that a domain name that contains a complainant’s trademark along with a generic word that describes its services, sufficiently satisfies the requirement that the disputed domain name is confusingly similar to the complainant’s mark, notwithstanding the fact that the trademark in question is a dictionary term. See ERGO Versicherungsgruppe AG v. Idealist, WIPO Case No. D2008-0377, where it was found that the combination of the trademark ERGO in the second level of a domain name together with a generic term “finance” made the disputed domain name confusingly similar to the trademark in question, even though the trademark ERGO is a Latin term commonly used by many as a generic term.
Accordingly, the Panel finds that the disputed domain name, registered by the Respondent is confusingly similar to a mark in which the Complainant has rights. The Complainant is found to have successfully established the first requirement under paragraph 4(a) the Policy.

B. Rights or Legitimate Interests

The second element under paragraph 4(a) of the Policy requires the Complainant to make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Policy under paragraph 4(c), provides some circumstances by which a respondent may demonstrate rights or legitimate interests in the disputed domain name, these are:


(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 tarnish the trademark or service mark at issue.
The Complainant has stated that the Respondent lacks rights or legitimate interests in the disputed domain name as the Respondent is not offering any goods and services and there is no bona fide use of the disputed domain name. Further, as no hotel or resort is being operated by the Respondent at the address given on the website, the disputed domain name is only being used for the purpose of misleading customers by creating a false impression of association with the Complainant. The Complainant has also asserted that the Respondent is not licensed or authorized to use its mark.
The Respondent has made no attempt to rebut the allegations made by the Complainant. The Panel notes that the Respondent has stated in his email dated August 24, 2015, “The business is not in operations at all”. The Respondent has not explicitly either rebutted the Complainant’s submissions or clarified with supporting documents whether the Respondent has used the disputed domain name in connection with a business at some point. The Panel finds the communication from the Respondent does not provide sufficient information about the Respondent’s intentions in registering and using the disputed domain name. Merely sending two short statements without any context or supporting evidence, in the Panel’s view, does not establish any rights in favor of the Respondent, or absolve the Respondent’s responsibility towards the domain name registered by him.
The Panel finds there is no evidence on record that shows the Respondent has used the disputed domain name in connection with a bona fide offering of goods or services. On the basis of the unchallenged submissions and the evidence filed by the Complainant, it is found that the Complainant has put forward a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds the Complainant has fulfilled the second element under paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith
The Complainant is required to establish that the disputed domain name has been registered in bad faith and is being used in bad faith by the Respondent.
In finding bad faith registration and use of a domain name, some relevant aspects that are likely to be considered or assessed by a panel are: whether there has been prior use of the mark by a complainant, the length of use of the trademark by the complainant, whether the mark is a well known mark, whether the mark is a coined or arbitrary word that makes the mark inherently distinctive, whether the mark has become distinctive due to it being used in commerce and is exclusively associated with the owner of the trademark and finally whether the Respondent is making legitimate use of the disputed domain name.

The following circumstances in the present case are relevant to the finding of bad faith registration and use of the disputed domain name. The Panel finds the word “Daiwik” has been adopted, used and promoted by the Complainant. The Complainant has established that its trademark existed at the time of the registration of the disputed domain name and the Complainant has shown about four years of prior use of the trademark at the time the disputed domain name was registered by the Respondent. The Panel agrees with the Complainant’s assessment that its mark has acquired distinctiveness due to its use in commerce in relation to its hotel services, which the Respondent was probably aware of when he registered the disputed domain name.


The disputed domain name, as discussed in the previous section, is apparently not used in connection with any legitimate business. The Respondent therefore is likely to have registered the disputed domain name to gain from the confusing similarity of the disputed domain name to the Complainant’s mark. The Panel finds that the use or the word “resorts” by the Respondent gives strength to the inference that the Respondent has chosen the disputed domain name for the goodwill associated with the Complainant’s mark with an intention to divert Internet users to the Respondent’s website.
The Respondent has not come forward to show that he has adopted the name or mark in connection with a bona fide offering of goods or services. Use of a domain name that is confusingly similar to the trademark of another, that is likely to cause false association and which is likely to redirect web traffic away from the trademark owner’s website is considered evidence of bad faith under paragraph 4(b)(iv) of the Policy, See Popular Enterprises LLC v. American Consumer’s First et al. WIPO Case No. D2003-0742.
The Panel accordingly finds, based on all that has been discussed, the Respondent has registered and is using the disputed domain name in bad faith. In conclusion the Panel finds that the Complainant has established the third element under paragraph 4(a) of the Policy.

7. Decision
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, <daiwikresorts.com> be transferred to the Complainant.

Harini Narayanswamy

Sole Panelist



Date: October 5, 2015



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