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WIPO Arbitration and Mediation Center

The Complainant is Amanresorts Limited, a company incorporated under the laws of Hong Kong, having its registered office at 3rd Floor, Kailey Tower, 16 Stanley Street, Central, Hong Kong.

The Respondent is Access Bali Online, having a place of business at Puri Taman Umadui B-21, Jalan Gunung Seputan, Denpasar Barat 80117, Bali, Indonesia.

The domain name in dispute is <amanresort.com>. The Registrar of the domain name as at the date of the Complaint is Tucows.com, Inc.

3.1 The Complaint was made pursuant to the Uniform Domain Name Dispute Resolution Policy approved by the Internet Corporation for Assigned Names and Numbers ("ICANN") on October 24, 1999 (the "Policy"), in accordance with the Rules for Uniform Domain Name Dispute Resolution Policy, also approved by ICANN on October 24, 1999 (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy in effect as of December 1, 1999 (the "Supplemental Rules").

3.2 The Complaint was received by the WIPO Arbitration and Mediation Center (the "Center") by email on August 31, 2001, and in hard copy on September 3, 2001. The fees prescribed under the Supplemental Rules have been paid by the Complainant.

3.3 The Center sent the Complainant an "Acknowledgement of Receipt of Complaint" by email on September 4, 2001. The Center sent a request for verification to Tucows.com, Inc. on September 10, 2001, by email. The Registrar responded to the Center’s request on September 12, 2001, verifying:

- The Complaint had been received.

- The domain name <amanresort.com> is registered with Tucows Inc.

- The Respondent is the current registrant of the domain name in dispute.

- Respondent’s contact details.

- The UDRP applies to the domain name.

- The domain name is currently on hold within the system.

3.4 The Center sent a Request for Amendment to the Complaint on September 10, 2001, by email. The Center received the Amendment to the Complaint on September 12, 2001, by email and on September 18, 2001, in hard copy.

3.5 The Center’s Formal Requirements Compliance Checklist was completed on September 18, 2001.

3.6 The Center sent a "Notification of Complaint and Commencement of Administrative Proceeding" to the Respondent by FedEx, facsimile and email and to the Complainant by email on September 20, 2001, in accordance with paragraph 2(a)(i) and (ii) of the Rules. The attempt is thus sufficient to discharge the Provider’s responsibility.

3.7 No Response was filed.

3.8 The Center sent the Respondent and Complainant a "Notification of Respondent Default" on October 13, 2001, by email.

3.9 In cases where no response has been filed, the Panel is particularly concerned to ensure that the requirement of paragraph 10(b) of the Rules, that the parties are treated with equality and that each party is given a fair opportunity to present its case, is fulfilled. The Panel is of the opinion that the Respondent has probably received actual notice of the Complaint. (Annex O of the Complaint contains evidence that one of the email addresses used by the Center was in fact used by Respondent in communications with the Complainant. Furthermore, it seems the facsimile transmission was successful.)

3.10 Considering the actions undertaken by the Provider, the Panel is of the view that in the present case, if the Respondent has not received actual notice of the proceedings, it is attributable solely to the Respondent’s contact particulars in the Whois database being erroneous. Neither the Complainant nor the Provider could take any alternative action.

3.11 The Center sent the parties a "Notification of Panelist Appointment" on October 25, 2001. The Center sent the parties a "Notification of Appointment of Administrative Panel and Projected Decision Date" on November 6, 2001.

3.12 All other procedural requirements appear to have been satisfied.

The following information was asserted as fact by the Complainant and remains uncontested.

The Complainant operates a chain of luxurious resort hotels (Annex G).

The following information is asserted as a fact in the Complaint and remains uncontested:

The Complainant has furnished evidence of the registration of "AMANRESORTS" as a trademark in the Kingdom of Cambodia from October 26, 1998, in numerous classes. For example, Registration number 011019 on the Principal Register is for hotel and motel services, catering service etc (International class 42). Registration number 011017 on the Principal Register is for arranging transportation of passengers and goods by road, rail, sea and air etc (International class 39). (Annex E). The Complainant also details the registration of the "AMANRESORTS" trademark in many countries including Australia, Hong Kong, Indonesia, Laos, Vietnam and several European countries (Annex F). There are also pending applications for the trademark "AMANRESORTS" in Mexico, Singapore, the United States of America etc.

The Complainant asserts and it remains uncontested that the Respondent is a travel agent.

4.5 The Complainant asserts that each of the elements specified in paragraph 4(a) of the Policy have been satisfied.

In reference to paragraph 4(a)(i) of the policy, the Complainant asserts that the domain name in dispute, <amanresort.com > is almost identical and/or confusingly similar to the Complainant’s registered trademark "AMANRESORTS".

4.6 In reference to paragraph 4(a)(ii) of the policy, the Complainant asserts that the Respondent has no legitimate interest in the domain name. In particular, it is asserted that:

4.7 In reference to paragraph 4(a)(iii) of the policy, the Complainant asserts that the domain name has been registered and used in bad faith because:

Furthermore,

This correspondence is contained in Annex P.

This section is structured by reference to the elements required by paragraph 4 (a) of the Policy. The onus is on the Complainant to make out its case on the balance of probabilities.

The Panel is satisfied that the domain name, <amanresort.com> is confusingly similar to the Complainant’s mark," AMANRESORTS". The only difference between the two is the use of the singular ‘resort’ in the domain name, the .com gTLD suffix performing no distinguishing role.

The Panel is therefore satisfied that the Complainant has proved paragraph 4(a)(i) of the Policy.

The disputed web site <amanresort.com> currently resolves to <baliwww.com/amanresort/> but did formerly resolve to a site which did not appear to be a re-direction. Both originally, as now see www.web.archive.org/web/*/http://amanresort.com, the site features a number of the Complainant’s properties in Indonesia and appears to be endorsed by or affiliated with the Complainant. Certainly there is no disavowal of any connection with the Complainant and the clear impression is that the Complainant is operating the site to accept bookings for its Indonesian (especially Bali) properties.

The Panel is satisfied beyond doubt that the Respondent only uses the disputed domain name to pose as the Complainant. The Panel notes that the Complainant has received referrals from the Respondent. In the opinion of the Panel, this does not amount to permission being given to the Respondent. The Complainant’s assertion that the Respondent has no rights or legitimate interests in the domain name is not unreasonable and has not been contradicted by any evidence available to the Panel.

The Panel finds that the Complainant has proved paragraph 4(a)(ii) of the Policy.

The Panel is satisfied beyond doubt that the Respondent has intentionally attempted to attract for commercial gain, Internet users to its web site, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation and endorsement of the web site or location and of a product or service on the web site or location. This is because:

- the domain name in dispute is confusingly similar to both the Complainant’s trademark and web site (<amanresorts.com>).

- the Respondent flagrantly portrays the disputed web site as being one of the Complainant’s websites.

The Panel is satisfied that the Respondent’s conduct is squarely within Paragraph 4(b)(iv) of the Policy which treats these facts as evidence of registration and use of the domain name in bad faith (Paragraph 4(b) of the Policy).

The Respondent’s attempt to sell the domain name to the Complainant under such conditions, and at an inflated price, also evidences bad faith.

The Panel therefore finds that the Complainant has proved paragraph 4(a)(iii) of the Policy.

The Panel has found that all of the requirements of paragraph 4(a) of the Policy have been proven by the Complainant. Accordingly, the Panel orders that the domain name <amanresort.com> be transferred by Tucows.com, Inc. to the Complainant, Amanresorts Limited.

Philip Argy
Presiding Panelist

James Dabney
Panelist

Andrew Brown
Panelist

Dated: November 20, 2001