Loew’s Hotels, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA1911001872840
Complainant is Loew’s Hotels, Inc. (“Complainant”), represented by Nicole Kinsley of Foley Hoag LLP, United States. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <loewss.com>, registered with GoDaddy.com, LLC.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 25, 2019; the Forum received payment on November 25, 2019.
On November 26, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <loewss.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 November 27, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 17, 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@loewss.com. Also on November 27, 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 December 19, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant, Loew’s Hotels, Inc., operates distinctive upscale hotels and resorts in the United States and Canada. Complainant has rights in the LOEWS mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., 1,601,550, registered June 12, 1990).
2. Respondent’s <loewss.com>[i] domain name is identical or confusingly similar to Complainant’s mark as it includes the LOEWS mark in its entirety, merely adding the letter “s” and the “.com” generic top-level domain (“gTLD”).
3. Respondent lacks rights or legitimate interests in the <loewss.com> domain name. Respondent is not licensed or authorized to use Complainant’s LOEWS mark and is not commonly known by the domain name.
4. Respondent fails to use the domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name resolves to a webpage containing pay-per-click hyperlinks that compete with Complainant.
5. Respondent registered and uses the <loewss.com> domain name in bad faith. Respondent has engaged in a pattern of bad faith registration and use. Additionally, Respondent uses the domain name to redirect Internet users to a webpage that hosts pay-per-click hyperlinks. Respondent engages in typosquatting by adding a single letter to the domain name.
6. Finally, Respondent had actual or constructive knowledge of Complainant’s rights in the LOEWS mark prior to registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the LOEWS mark. Respondent’s domain name is confusingly similar to Complainant’s LOEWS mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <loewss.com> domain name and that Respondent registered and uses the 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 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 has rights in the LOEWS mark based on the registration with the USPTO. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides copies of its registration of the LOEWS mark with the USPTO (e.g., 1,601,550, registered June 12, 1990). Complainant has established rights in the LOEWS mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <loewss.com> domain name is identical or confusingly similar to Complainant’s mark as it includes the LOEWS mark in its entirety, merely adding a letter and a gTLD. Misspelling of a complainant’s mark, either by adding or removing letters, and adding a gTLD does not sufficiently mitigate any confusing similarity between a domain name and mark under Policy ¶ 4(a)(i). See Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Forum May 3, 2006) (finding that the additions of the letter “s” and generic top-level domains to the disputed <barnesandnobles.info> and <barnesandnobles.biz> domain names failed to avoid the confusing similarity between the domain names and the complainant’s BARNESANDNOBLE.COM mark pursuant to Policy ¶ 4(a)(i)). Respondent merely adds the letter “s” and the “.com” gTLD to Complainant’s LOEWS mark. The Panel holds that the <loewss.com> domain name is identical or confusingly similar to the LOEWS mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <loewss.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <loewss.com> domain name. Specifically, Complainant argues that Respondent is not commonly known by the domain name and Respondent is not a licensee or authorized to use Complainant’s LOEWS mark. Where a response is absent, WHOIS information may be used to determine whether a respondent is commonly known by a domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the 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 WHOIS information for the <loewss.com> domain name lists the registrant as “Carolina Rodrigues / Fundacion Comercio Electronico,” and there is no other evidence to suggest that Respondent was authorized to use the LOEWS mark. Therefore, Respondent is not commonly known by the <loewss.com> domain name per ¶ 4(c)(ii).
Complainant argues Respondent fails to use the <loewss.com> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent’s domain name resolves to a webpage containing pay-per-click hyperlinks that compete with Complainant. A respondent’s domain name that incorporates the mark of another that resolves to a webpage hosting pay-per-click hyperlinks that compete with a complainant does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name). Complainant provides screenshots of the <loewss.com> domain name’s resolving webpage which show pay-per-click hyperlinks that compete with Complainant. The Panel therefore finds Respondent fails to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Furthermore, Complainant contends Respondent engages in typosquatting. Misspelling of a complainant’s mark in order to commercially benefit from a confusing similarity between a domain name and the mark can show bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). Respondent merely adds an additional letter “s” to the LOEWS mark. Thus, Respondent’s addition of a single letter in Complainant’s mark constitutes typosquatting, further evidencing bad faith by Respondent per Policy ¶ 4(a)(iii).
Complainant also argues that the Respondent had actual knowledge of Complainant’s rights in the mark at the time of registration of the <loewss.com> domain name. Actual knowledge of Complainant’s mark prior to registering is adequate to find bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize constructive notice as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”) Prior knowledge can be evidenced by Respondent’s use of the LOEWS mark to attract Internet users to a website in competition with the Complainant under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Thus, the Panel holds that Respondent registered the <loewss.com> domain name in bad faith per Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <loewss.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 23, 2019
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