Desarrollo Marina Vallarta, S.A.de C.V. v. Norberto Ortiz / VIDA
Claim Number: FA2005001895144
Complainant is Desarrollo Marina Vallarta, S.A.de C.V. (“Complainant”), represented by Alvaro Marquez Soria, Mexico. Respondent is Norberto Ortiz / VIDA (“Respondent”), Mexico.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <grupovidantavacation.com> (the “disputed domain name”, registered with eNom, LLC (the “Registrar”).
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 6, 2020; the Forum received payment on May 6, 2020.
On May 7, 2020, eNom, LLC confirmed by e-mail to the Forum that the <grupovidantavacation.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, LLC 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 May 12, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 1, 2020 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@grupovidantavacation.com. Also on May 12, 2020, 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 June 4, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun 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 leading resort developer in Latin America and operates resorts, vacation destinations, luxury hotels, and entertainment experiences. Complainant has rights in the GRUPO VIDANTA trademark based upon its registration of the trademark with the Mexican Institute of Industrial Property (“MIIP”) (e.g., Reg. No. 1082319, registered Jan. 7, 2009) (the “GRUPO VIDANTA Mark”).
The Complainant contends that the <grupovidantavacation.com> disputed domain name is confusingly similar to the GRUPO VIDANTA Mark because it wholly incorporates the trademark, adding only the descriptive term “vacation” and the “.com” generic top-level domain (“gTLD”).
Complainant also contends that Respondent does not have rights or legitimate interests in the <grupovidantavacation.com> dispute domain name since Respondent is not licensed or authorized to use the GRUPO VIDANTA Mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name and email to impersonate the Complainant and to pass off as an employee of Complainant.
Finally, Respondent registered and is using the <grupovidantavacation.com> disputed domain name in bad faith since Respondent attempts to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with the GRUPO VIDANTA Mark as to the source, sponsorship, affiliation, or endorsement of the website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights in the GRUPO VIDANTA Mark. The disputed domain name is confusingly similar to Complainant’s GRUPO VIDANTA Mark. Further, Complainant has established that Respondent lacks rights or legitimate interests in the use of the disputed domain name and that Respondent registered and is using the disputed domain name in bad faith.
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 disputed 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 disputed domain name; and
(3) the disputed 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”).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
Complainant alleges that Respondent holds no rights or legitimate interests in the disputed domain name. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. See 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”). In this case, Respondent did not carry its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name as it did not respond to the Complaint, but given the facts of this case, the Panel finds Respondent would have been hard-pressed to furnish availing arguments, had it chosen to respond:
Specifically, Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the GRUPO VIDANTA Mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. Further, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use, because the disputed domain name resolves to a website similar to Complainant's official website. Respondent also uses the disputed domain name and email to impersonate Complainant and to pass off as an employee of Complainant. Use of a disputed domain name to pass off as a complainant via email is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name)
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel concludes that Respondent registered and is using the disputed domain name in bad faith.
First, Respondent attempts to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with the GRUPO VIDANTA Mark as to the source, sponsorship, affiliation, or endorsement of the content thereon. Bad faith under Policy ¶ 4(b)(iv) can be found where a respondent uses a confusingly similar domain name to falsely indicate an association with a complainant. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)). Here, Respondent created a likelihood of confusion with Complainant and its trademark by registering a domain that incorporates Complainant’s GRUPO VIDANTA Mark in its entirety, and giving the impression that Internet users will receive information regarding Complainant, but rather sending such users to a webpage that has no connection to Complainant.
Second, Respondent registered and is using the <grupovidantavacation.com> disputed domain name in bad faith because Respondent attempts to impersonate Complainant as part of an email phishing scheme for commercial gain. Use of a disputed domain name to impersonate a complainant in furtherance of a fraudulent scheme constitutes bad faith pursuant to Policy ¶ 4(b)(iii) and (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”). Here, Respondent used an email address associated with the disputed domain name to impersonate Complainant and send phishing emails to Complainant’s customers, apparently designed to solicit information under false pretenses. Complainant has provided copies of the emails sent by Respondent regarding the fraudulent email scheme in an annex to the Complaint.
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <grupovidantavacation.com> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: June 10, 2020
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