Hard Rock Cafe International (USA), Inc. v. fem infi
Claim Number: FA1904001838032
Complainant is Hard Rock Cafe International (USA), Inc. (“Complainant”), represented by P. Jay Hines of Muncy, Geissler, Olds & Lowe, P.C., Virginia, USA. Respondent is fem infi (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hardrockshotels.com>, registered with NameCheap, 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 9, 2019; the Forum received payment on April 9, 2019.
On April 9, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <hardrockshotels.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 April 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 6, 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@hardrockshotels.com. Also on April 15, 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 May 8,2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, Hard Rock Cafe International (USA), Inc., is engaged in the business of leisure and entertainment. Complainant has rights in the HARD ROCK HOTEL mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,909,483, registered Aug. 1, 1995). See Amend. Compl. Tab 2. Respondent’s <hardrockshotels.com> is confusingly similar to Complainant’s family of marks as it incorporates the mark in its entirety.
Respondent does not have rights or legitimate interests in the <hardrockshotels.com> domain name. Respondent is not permitted or licensed to use Complainant’s HARD ROCK HOTEL mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use.
Respondent has registered and uses the <hardrockshotels.com> domain name in bad faith. Respondent is attempting to attract Internet users to its website for commercial gain by trading off the reputation associated with Complainant’s mark. See Compl. Tab 12. Further, Respondent had actual or constructive knowledge of Complainant’s HARD ROCK HOTEL mark prior to registering the <hardrockshotels.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on December 10, 2018
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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”).
The Panel finds that the disputed domain name, <hardrockshotels.com> is confusingly similar to Complainant’s trademark, HARD ROCK HOTELS. Complainant has adequately established its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely deleting two spaces, adding an “s” and the g TLD “.com” to Complainant’s trademark. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the dispute domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent is apparently not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
Further, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name. It does so by attempting to attract Internet users to its website for commercial gain by trading off the reputation associated with Complainant’s mark. Using a confusingly similar domain name to trade off the goodwill associated with a complainant’s mark for commercial gain is evidence of bad faith registration and use per Policy ¶ 4(b)(iv). See Menard, Inc. v. Domain Admin / Whois Privacy Corp., FA 1785761 (Forum June 13, 2018) (“A respondent’s appropriation of a complainant’s mark in a confusingly similar domain name to divert potential consumers to its own web site is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Here, Complainant contends that Respondent’s confusingly similar domain name is intended to mislead Internet users and divert Internet traffic away from Complainant’s site to Respondent’s website for commercial gain. Presumably, Respondent would commercially benefit through the display of various links to third-party websites. See Compl. Tab 12.
As such, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Further, the Panel finds that Respondent had actual knowledge of Complainant’s HARD ROCK HOTEL mark prior to registering the infringing domain name. Complainant claims that Respondent’s knowledge can be inferred due to Respondent’s use of Complainant’s famous HARD ROCK HOTEL mark and Respondent’s use of the domain name’s resolving webpage. Therefore, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the HARD ROCK HOTEL mark prior to registering the disputed domain name.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <hardrockshotels.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: May 13, 2019
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