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On-line ADR Center of the Czech Arbitration Court (CAC)

Panel Decision

§ 15 of the UDRP Rules (Rules), § 9 of the CAC’s Supplemental Rules (Supplemental Rules)

Case No.	104404
Time of Filing	2022-03-15 10:20:14
Disputed domain name	AMANASPEN.COM

Case Administrator
Name	Denisa Rihova

Complainant
Organization	Aman Group S.á.r.I.
Authorized Representative
Organization	HSS IPM GmbH

Respondent
Name	Christian Messner

Other Legal Proceedings
The Panel is not aware of any other legal proceedings which are pending or decided and which relate to the disputed domain name.

Identification of rights
In these proceedings, the Complainant mainly relies on the following trademarks: - AMAN, International Registration No. 953150, filed on August 24, 2007, and duly renewed, in the name of Aman Group S.à.r.l. (the Complainant), based on Singaporean priority from June 20, 2007 and covering also the U.S.A., where the Respondent is located; - AMAN, EU Registration No. 005892757, filed on May 10, 2007, and duly renewed, in the name of Aman Group S.à.r.l. (the Complainant); and - AMAN, US Registration No. 79256965, filed on December 10, 2018, in the name of Aman Group S.à.r.l. (the Complainant). It is worth noting that, the Complainant owns many similar trademarks in various countries (including in the EU, U.S.A., U.K., Thailand and Singapore), some of which have been cited in these proceedings.

Identification of rights

In these proceedings, the Complainant mainly relies on the following trademarks:

- AMAN, International Registration No. 953150, filed on August 24, 2007, and duly renewed, in the name of Aman Group S.à.r.l. (the Complainant), based on Singaporean priority from June 20, 2007 and covering also the U.S.A., where the Respondent is located;
- AMAN, EU Registration No. 005892757, filed on May 10, 2007, and duly renewed, in the name of Aman Group S.à.r.l. (the Complainant); and
- AMAN, US Registration No. 79256965, filed on December 10, 2018, in the name of Aman Group S.à.r.l. (the Complainant).

It is worth noting that, the Complainant owns many similar trademarks in various countries (including in the EU, U.S.A., U.K., Thailand and Singapore), some of which have been cited in these proceedings.

Factual Background
FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT: The Complainant is a Swiss-based group, founded in 1988 and well-known in the field of luxury accommodation. Ever since, the Complainant has acquired commercial presence all around the world, including in the U.S.A., with as many as 32 destinations in 20 countries. The Complainant owns a fair-sized portfolio of trademarks including the wording "AMAN", among which several registrations in Singapore dating back to 2007. It also owns a multitude of related domain names within its group, such as its flagship <aman.com> since July 22, 1997 and, more recently, <aman-aspen.com> since February 15, 2022. The disputed domain name <AMANASPEN.COM> was registered on February 13, 2022 by the Respondent.

Factual Background

FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT:

The Complainant is a Swiss-based group, founded in 1988 and well-known in the field of luxury accommodation. Ever since, the Complainant has acquired commercial presence all around the world, including in the U.S.A., with as many as 32 destinations in 20 countries.

The Complainant owns a fair-sized portfolio of trademarks including the wording "AMAN", among which several registrations in Singapore dating back to 2007. It also owns a multitude of related domain names within its group, such as its flagship <aman.com> since July 22, 1997 and, more recently, <aman-aspen.com> since February 15, 2022.

The disputed domain name <AMANASPEN.COM> was registered on February 13, 2022 by the Respondent.


PARTIES' CONTENTIONS: COMPLAINANT: The Complainant contends that the disputed domain name is confusingly similar to its AMAN trademark, as it fully incorporates this trademark. This last element is sufficient to support the finding that the disputed domain name is confusingly similar to the Complainant's trademark. Indeed, the mere addition of the component “ASPEN” (which evokes the known US resort) after the Complainant’s trademark does not change the overall impression of a most likely connection with the trademark AMAN of the Complainant. As to the gTLD “.com”, the Complainant suggests that it should be disregarded, as per the usual practice. The Complainant maintains that the Respondent lacks rights or legitimate interests in the disputed domain name because the Respondent is not known by the disputed domain name, the Complainant is not affiliated with nor has it ever authorised the Respondent to register its trademark as a domain name and the Complainant has no business with the Respondent. According to the Complainant, given the distinctiveness and reputation of the AMAN trademark, the Respondent registered the disputed domain name with full knowledge of the Complainant's trademark in an intentionally designed way with the aim to create a likelihood of confusion with the Complainant’s trademarks and domain names, and this is evidence of the fact that the disputed domain name was registered in bad faith. With respect to use in bad faith, the Complainant points out that the Respondent has used the disputed domain name as pay-per-click website with commercial links, in order to mislead the consumers in believing that it is affiliated with the Complainant, which is considered as a clear indication of bad faith. According to the Complainant, the Respondent has tried to attract internet users for commercial gain. Further, the Respondent has not replied to the Complainant’s cease and desist letter. For all these reasons, the Complainant concludes that the Respondent registered and used the disputed domain name in bad faith. RESPONDENT: NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.

PARTIES' CONTENTIONS:

COMPLAINANT:

The Complainant contends that the disputed domain name is confusingly similar to its AMAN trademark, as it fully incorporates this trademark. This last element is sufficient to support the finding that the disputed domain name is confusingly similar to the Complainant's trademark. Indeed, the mere addition of the component “ASPEN” (which evokes the known US resort) after the Complainant’s trademark does not change the overall impression of a most likely connection with the trademark AMAN of the Complainant. As to the gTLD “.com”, the Complainant suggests that it should be disregarded, as per the usual practice.

The Complainant maintains that the Respondent lacks rights or legitimate interests in the disputed domain name because the Respondent is not known by the disputed domain name, the Complainant is not affiliated with nor has it ever authorised the Respondent to register its trademark as a domain name and the Complainant has no business with the Respondent.

According to the Complainant, given the distinctiveness and reputation of the AMAN trademark, the Respondent registered the disputed domain name with full knowledge of the Complainant's trademark in an intentionally designed way with the aim to create a likelihood of confusion with the Complainant’s trademarks and domain names, and this is evidence of the fact that the disputed domain name was registered in bad faith.

With respect to use in bad faith, the Complainant points out that the Respondent has used the disputed domain name as pay-per-click website with commercial links, in order to mislead the consumers in believing that it is affiliated with the Complainant, which is considered as a clear indication of bad faith. According to the Complainant, the Respondent has tried to attract internet users for commercial gain. Further, the Respondent has not replied to the Complainant’s cease and desist letter.

For all these reasons, the Complainant concludes that the Respondent registered and used the disputed domain name in bad faith.

RESPONDENT:

NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED.

Rights
The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy). The disputed domain name consists of the Complainant's whole registered trademark (“AMAN”), written before a geographical term (“ASPEN”). As far as the gTLD ".com" is concerned, it is generally recognized that top level domains do not have any bearing in the assessment of identity or confusing similarity, according to paragraph 4(a)(i) of the Policy. Hence, the Panel is satisfied that the first requirement under the Policy is met.

Rights

The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).

The disputed domain name consists of the Complainant's whole registered trademark (“AMAN”), written before a geographical term (“ASPEN”).

As far as the gTLD ".com" is concerned, it is generally recognized that top level domains do not have any bearing in the assessment of identity or confusing similarity, according to paragraph 4(a)(i) of the Policy.

Hence, the Panel is satisfied that the first requirement under the Policy is met.

No rights or legitimate interests
The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy). Since proving a negative fact is almost impossible, panelists in UDRP proceedings have generally agreed that it is sufficient for the complainant to establish a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name to shift the burden of proof to the respondent. In the case at issue, the Complainant argued that it had never authorised the Respondent to register the AMAN trademark in a domain name, and that it had never licensed its trademark to the Respondent. Furthermore, the Respondent has not demonstrated any use of the disputed domain name in connection with a bona fide offering of goods and services or a legitimate non-commercial or fair use of the disputed domain name. Finally, there is no other evidence in the case file that could demonstrate that the Respondent has been commonly known by the disputed domain name. In view of the foregoing, the Panel is satisfied that the Complainant has established a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name. In order to rebut the Complainant's arguments, the Respondent had the possibility to make his own defense. However, the Respondent has chosen not to file a Response. Therefore, the Panel is satisfied that also the second requirement under the Policy is met.

No rights or legitimate interests

The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy).

Since proving a negative fact is almost impossible, panelists in UDRP proceedings have generally agreed that it is sufficient for the complainant to establish a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name to shift the burden of proof to the respondent.

In the case at issue, the Complainant argued that it had never authorised the Respondent to register the AMAN trademark in a domain name, and that it had never licensed its trademark to the Respondent.

Furthermore, the Respondent has not demonstrated any use of the disputed domain name in connection with a bona fide offering of goods and services or a legitimate non-commercial or fair use of the disputed domain name.

Finally, there is no other evidence in the case file that could demonstrate that the Respondent has been commonly known by the disputed domain name.

In view of the foregoing, the Panel is satisfied that the Complainant has established a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name. In order to rebut the Complainant's arguments, the Respondent had the possibility to make his own defense. However, the Respondent has chosen not to file a Response.

Therefore, the Panel is satisfied that also the second requirement under the Policy is met.

Bad faith
The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy). As far as registration in bad faith is concerned, given the reputation of the Complainant's trademark in its field of business and the fact that the disputed domain name fully incorporates this trademark, it is clear that, at the time of the registration of the disputed domain name, the Respondent was well aware of the Complainant's trademark. The registration as domain name of a third party's well-known trademark with full knowledge of the fact that the rights over this trademark belong to a third party amounts to registration in bad faith. With respect to use in bad faith, the disputed domain name resolves to a parked, passively held pay-per-click website with commercial links in fields similar to the Complainant’s (cabins in Aspen, car rental for tourists, etc.), through which the Respondent is attempting to have commercial gain. For this Panel, such misleading behaviour clearly amounts to use in bad faith. At the same time, the Complainant is currently becoming quite known in Aspen (through its recent “Aspen project”), where the Respondent is also located and active as a real estate agent, as alleged by the Complainant and not rebutted by the Respondent. Further, the Respondent has not replied to the Complainant’s cease and desist letter. Therefore, it is impossible for this Panel to conceive any plausible active use of the disputed domain name by the Complainant that would be legitimate. Therefore, the Panel finds it clear that the disputed domain name was used in bad faith. For all circumstances mentioned above, the Panel is satisfied that also the third requirement under the Policy is met.

Bad faith

The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).

As far as registration in bad faith is concerned, given the reputation of the Complainant's trademark in its field of business and the fact that the disputed domain name fully incorporates this trademark, it is clear that, at the time of the registration of the disputed domain name, the Respondent was well aware of the Complainant's trademark. The registration as domain name of a third party's well-known trademark with full knowledge of the fact that the rights over this trademark belong to a third party amounts to registration in bad faith.

With respect to use in bad faith, the disputed domain name resolves to a parked, passively held pay-per-click website with commercial links in fields similar to the Complainant’s (cabins in Aspen, car rental for tourists, etc.), through which the Respondent is attempting to have commercial gain. For this Panel, such misleading behaviour clearly amounts to use in bad faith. At the same time, the Complainant is currently becoming quite known in Aspen (through its recent “Aspen project”), where the Respondent is also located and active as a real estate agent, as alleged by the Complainant and not rebutted by the Respondent. Further, the Respondent has not replied to the Complainant’s cease and desist letter. Therefore, it is impossible for this Panel to conceive any plausible active use of the disputed domain name by the Complainant that would be legitimate.

Therefore, the Panel finds it clear that the disputed domain name was used in bad faith.

For all circumstances mentioned above, the Panel is satisfied that also the third requirement under the Policy is met.

Procedural Factors
The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.

Principal Reasons for the Decision
The disputed domain name wholly incorporates the Complainant's trademark, written next to a geographical term. The disputed domain name is therefore confusingly similar to the Complainant's trademark. The Respondent was not authorised to include the Complainant's trademark in the disputed domain name, and the Complainant never licensed its trademarks to the Respondent. The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, or a legitimate non-commercial or fair use. The Respondent registered the disputed domain name with full knowledge of the Complainant's well-known trademark. His misleading use of the disputed domain name is in bad faith as there is no conceivable use of the disputed domain name that could amount to a legitimate use.

Principal Reasons for the Decision

The disputed domain name wholly incorporates the Complainant's trademark, written next to a geographical term. The disputed domain name is therefore confusingly similar to the Complainant's trademark.

The Respondent was not authorised to include the Complainant's trademark in the disputed domain name, and the Complainant never licensed its trademarks to the Respondent. The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services, or a legitimate non-commercial or fair use.

The Respondent registered the disputed domain name with full knowledge of the Complainant's well-known trademark. His misleading use of the disputed domain name is in bad faith as there is no conceivable use of the disputed domain name that could amount to a legitimate use.

Decision
For all the reasons stated above, the Complaint is	Accepted
and the disputed domain name(s) is (are) to be
AMANASPEN.COM	Transferred to the Complainant

Panellists
Name	Sozos-Christos Theodoulou
Date of Panel Decision	2022-04-19

Publication of the Decision
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Dispute 104404

Panel Decision