Loew’s Hotels, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico
Claim Number: FA2202001984599
Complainant is Loew’s Hotels, Inc. (“Complainant”), represented by Natasha Reed of Foley Hoag LLP, New York, USA. Respondent is Carolina Rodrigues / Fundacion Comercio Electronico (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <jobsloews.com>, registered with GoDaddy.com, LLC.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 16, 2022; the Forum received payment on February 16, 2022.
On February 17, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <jobsloews.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 February 22, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 14, 2022 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@jobsloews.com. Also on February 22, 2022, 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.
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 operates distinctive and upscale hotels and resorts across 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. Reg. No. 1,601,550, registered June 12, 1990). Respondent’s <jobsloews.com> domain name is confusingly similar to Complainant’s LOEWS mark. Respondent incorporates the mark in its entirety and adds the generic term “jobs” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <jobsloews.com> domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the LOEWS mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to resolve to a webpage that offers links to third party webpages that offer travel and hotel services that compete with Complainant’s business.
Respondent registered and used the <jobsloews.com> domain name in bad faith as Respondent’s domain name resolves to a webpage that offers links to third parties that provide similar services to Complainant’s business. Respondent had actual knowledge of Complainant’s rights in the LOEWS mark due to the longstanding use and fame of the mark in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <jobsloews.com> 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”).
Complainant claims to have rights in the LOEWS mark through its registrations with the USPTO. Registration of a mark with the USPTO is sufficient to demonstrate rights in a mark per policy ¶ 4(a)(i). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)). Complainant has provided this Panel with copies of its USPTO registrations for the LOEWS mark (e.g. Reg. No. 1,601,550, registered June 12, 1990). The Panel finds that Complainant has rights in the mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <jobsloews.com> domain name is confusingly similar to Complainant’s LOEWS mark. Complainant argues that Respondent incorporates the mark in its entirety and adds the generic term “jobs” along with the “.com” gTLD. Registration of a domain name that contains a mark in its entirety and adds a generic term along with a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). The Panel finds that Respondent’s domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also 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”). The Panel finds that Complainant has made a prima facie case.
Complainant argues Respondent lacks rights or legitimate interest in the <jobsloews.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been given license or consent to use the LOEWS mark or register domain names using Complainant’s mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed 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 disputed domain name lists the registrant as “Carolina Rodrigues / Fundacion Comercio Electronico” and there is no evidence to suggest that Respondent was authorized to use the LOEWS mark or was commonly known by the disputed domain name. The Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to resolve to a webpage that offers links to third party webpages that offer travel and hotel services that compete with Complainant’s business. Use of a disputed domain name to resolve to a webpage that offers links to services that compete with a complainant is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy 4(c)(i) or (iii). See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”). Complainant has provided the Panel with a screenshot of its <jobsloews.com> domain name’s resolving webpage that shows links to third party services that compete with Complainant’s business. The Panel finds that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent registered and used the <jobsloews.com> domain name in bad faith as Respondent’s domain name resolves to a webpage that offers links to third parties that provide similar services to Complainant’s business. Use of a disputed domain name that resolves to a webpage that offers links to services that compete with a complainant’s business may be evidence of bad faith per Policy ¶ 4(b)(iii). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”). Complainant has provided the Panel with a screenshot of its <jobsloews.com> domain name’s resolving webpage that shows links to third party services that compete with Complainant’s business. This is evidence that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii).
Complainant argues that Respondent had actual knowledge of Complainant’s rights in the LOEWS mark at the time of registering the <jobsloews.com> domain name. Actual knowledge of Complainant’s rights can adequately demonstrate bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 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”). To support this assertion, Complainant points to its trademark registrations and the use made of the domain name. The Panel finds that Respondent did have actual knowledge of Complainant’s right in its mark and registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
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 <jobsloews.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
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