O plus E Holdings Private Ltd. v. Mujuthaba` Saeed / Maldives Exclusive
Claim Number: FA1906001848349
Complainant is O plus E Holdings Private Ltd. (“Complainant”), represented by Ploynapa Julagasigorn, Thailand. Respondent is Mujuthaba` Saeed / Maldives Exclusive (“Respondent”), Maldives.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <niyama-maldives.com> registered with Name.com, Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 17, 2019; the Forum received payment on June 17, 2019.
On June 18, 2019, Name.com, Inc. confirmed by e-mail to the Forum that the <niyama-maldives.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 26, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 16, 2019 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@niyama-maldives.com. Also on June 26, 2019, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 19, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson as Panelist
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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 Respondent to Complainant.
A. Complainant
Complainant is a hospitality company based in the Maldives. Complainant has rights in the NIYAMA MALDIVES mark through its registration of the mark with the Ministry of Economic Development of the Republic of Maldives (e.g., No. TM-0098/2013, registered November. 14, 2013). Respondent’s <niyama-maldives.com> domain name is identical or confusingly similar to Complainant’s mark as Respondent merely adds a hyphen between the two terms and the “.com” generic top-level domain (“gTLD”).
Respondents has no rights or legitimate interests in the <niyama-maldives.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is attempting to pass off as Complainant.
Respondent’s <niyama-maldives.com> domain name was registered and is being used in bad faith, as the Respondent is attempting to pass off as Complainant, for commercial gain, and disrupt Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is O plus E Holdings Private Ltd. (“Complainant”), of Male, Maldives. Complainant is the owner of a domestic registration for the mark NIYAMA MALDIVES, which it has continuously used since at least as early as 2013 in connection with its provision of hospitality and tourism goods and services.
Respondent is Mujuthaba` Saeed / Maldives Exclusive (“Respondent”), of Addu City, Maldives. Respondent’s registrar’s address is listed as Denver, CO, USA.
The Panel notes that Respondent registered <niyama-maldives.com> on or about September 10, 2016.
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."
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant claims rights in the NIYAMA MALDIVES mark through its registration of the mark with the Ministry of Economic Development of the Republic of Maldives (e.g., No. TM-0098/2013, registered November. 14, 2013). Registration of a mark with a governmental organization or agency is sufficient to establish rights in a mark under Policy ¶ 4(a)(i). See Teleflex Incorporated v. Leisa Idalski, FA 1794131 (Forum July 31, 2018) (“Registration of a mark with governmental trademark agencies is sufficient to establish rights in that mark for the purposes of Policy ¶ 4(a)(i).”). The Panel here finds that Complainant has rights in the NIYAMA MALDIVES mark under Policy ¶ 4(a)(i).
Complainant argues Respondent’s <niyama-maldives.com> domain name is identical or confusingly similar to Complainant’s mark as Respondent incorporates the mark in its entirety and merely adds a hyphen between the two terms and the “.com” generic top-level domain (“gTLD”). The mere addition of a hyphen and gTLD to a fully incorporated mark does not sufficiently distinguish a disputed domain name from the mark under Policy ¶ 4(a)(i). See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) (finding that the addition of a hyphen between terms of a registered mark did not differentiate the <p-zero.org> domain name from the P ZERO mark under Policy ¶ 4(a)(i)). The Panel here finds Respondent’s <niyama-maldives.com> domain name is identical or confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <niyama-maldives.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed or authorized by the Complainant to use Complainant’s mark. Where a response is lacking, relevant WHOIS information can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent lacks rights or legitimate interest in a disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The Panel here notes the WHOIS of record identifies the Respondent as “Mujuthaba` Saeed/Maldives Exclusive” and no information in the record indicates that Respondent was authorized to use Complainant’s mark or was commonly known by the disputed domain name. The Panel thus finds Respondent has no rights or legitimate interests in the <niyama-maldives.com> domain name as Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to use the <niyama-maldives.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent is attempting to pass off as Complainant. Use of a disputed domain name to deceive Internet users into believing a respondent is associated with a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶4(c)(i) and (iii).”). Here, Complainant provides the <niyama-maldives.com> domain name’s resolving webpage which shows a travel site for the Maldives that appears to be nearly identical to Complainant’s own website and includes pictures taken from Complainant’s website. Therefore, the Panel may find that Respondent fails to use the <niyama-maldives.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent’s <niyama-maldives.com> domain name was registered and is being used in bad faith, as the Respondent is attempting to pass off as Complainant for commercial gain and disrupt Complainant’s business. Using a disputed domain name to imply an affiliation with a complainant for the purposes of disrupting a complainant’s business and profiting may be evidence of bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) (“In the opinion of the panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe the links on it are connected to or approved by Complainant as they offer competing products under a sign confusingly similar to Complainant’s mark as well as containing links related to Complainant itself. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trademarks as to the source, sponsorship, affiliation or endorsement of the web site or products on it likely to disrupt the business of Complainant.”). Here, Complainant provides the <niyama-maldives.com> domain name’s resolving webpage which shows a travel site for the Maldives that appears to be nearly identical to Complainant’s site and includes pictures taken from Complainant’s website and Complainant’s mark at the heading of each section of the website. The Panel here finds that Respondent’s <niyama-maldives.com> domain name was registered and is being used in bad faith, as the Respondent is attempting to pass off as Complainant for commercial gain and to disrupt Complainant’s business under Policy ¶¶ 4(b)(iii) & (iv).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <niyama-maldives.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: August 2, 2019
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