Marriott International, Inc. v. GBT - Domains For
Claim Number: FA0802001153595
Complainant is Marriott International, Inc. (“Complainant”), represented by Blake
R. Bertagna, of Arent Fox PLLC,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <marriottbangkok.com>, <bangkokmarriott.com>, <pattayamarriott.com>, <krabimarriott.com>, <chinamarriott.com>, <marriottchina.com>, <marriottsydney.com>, <renaissanceharbourview.com>, <marriottchateau.com>, <ledramarriott.com>, <jwmarriotthongkong.com>, <jwmarriottresort.com>, <marriottsingapore.com>, and <courtyardberlin.com>, registered with Tucows 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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On March 12, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 1, 2008 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@marriottbangkok.com, postmaster@bangkokmarriott.com, postmaster@pattayamarriott.com, postmaster@krabimarriott.com, postmaster@chinamarriott.com, postmaster@marriottchina.com, postmaster@marriottsydney.com, postmaster@renaissanceharbourview.com, postmaster@marriottchateau.com, postmaster@ledramarriott.com, postmaster@jwmarriotthongkong.com, postmaster@jwmarriottresort.com, postmaster@marriottsingapore.com and postmaster@courtyardberlin.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <marriottbangkok.com>, <bangkokmarriott.com>, <pattayamarriott.com>, <krabimarriott.com>, <chinamarriott.com>, <marriottchina.com>, <marriottsydney.com>, <renaissanceharbourview.com>, <marriottchateau.com>, <ledramarriott.com>, <jwmarriotthongkong.com>, <jwmarriottresort.com>, <marriottsingapore.com>, and <courtyardberlin.com> domain names are confusingly similar to Complainant’s MARRIOTT, RENAISSANCE, and COURTYARD marks.
2. Respondent does not have any rights or legitimate interests in the <marriottbangkok.com>, <bangkokmarriott.com>, <pattayamarriott.com>, <krabimarriott.com>, <chinamarriott.com>, <marriottchina.com>, <marriottsydney.com>, <renaissanceharbourview.com>, <marriottchateau.com>, <ledramarriott.com>, <jwmarriotthongkong.com>, <jwmarriottresort.com>, <marriottsingapore.com>, and <courtyardberlin.com> domain names.
3. Respondent registered and used the <marriottbangkok.com>, <bangkokmarriott.com>, <pattayamarriott.com>, <krabimarriott.com>, <chinamarriott.com>, <marriottchina.com>, <marriottsydney.com>, <renaissanceharbourview.com>, <marriottchateau.com>, <ledramarriott.com>, <jwmarriotthongkong.com>, <jwmarriottresort.com>, <marriottsingapore.com>, and <courtyardberlin.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Marriott International, Inc., operates one of
the world’s most well-known and extensive hotel, restaurant, hospitality, and
timesharing companies in the world, employing over 140,000 people. Complainant operates 3,000 properties in the
Respondent registered the <marriottbangkok.com>, <bangkokmarriott.com>, <pattayamarriott.com>,
<krabimarriott.com>, <chinamarriott.com>, <marriottchina.com>,
<marriottsydney.com>, <renaissanceharbourview.com>, <marriottchateau.com>,
<ledramarriott.com>, <jwmarriotthongkong.com>, <jwmarriottresort.com>,
<marriottsingapore.com>, and <courtyardberlin.com>
domain names between
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant asserts rights in each of the MARRIOTT,
RENAISSANCE, and COURTYARD marks through registration with the USPTO. The Panel finds that Complainant has
established rights in the marks under Policy ¶ 4(a)(i). See Automotive Racing Products, Inc. v. Linecom,
FA 836787 (Nat. Arb. Forum
Complainant contends that Respondent’s <marriottbangkok.com>, <bangkokmarriott.com>, <pattayamarriott.com>,
<krabimarriott.com>, <chinamarriott.com>, <marriottchina.com>,
<marriottsydney.com>, <courtyardberlin.com>, <ledramarriott.com>,
<jwmarriotthongkong.com>, and <marriottsingapore.com>
domain names are confusingly similar to its MARRIOTT and COURTYARD marks. Each of Respondent’s disputed domain names
contain one of Complainant’s marks and adds a geographic term such as “Bangkok”
or “China” along with the generic top-level domain (“gTLD”) “.com.” Additionally, Complainant’s <jwmarriotthongkong.com> domain name contains the letters “jw.” The Panel finds that that the addition of
geographic terms, letters, and a gTLD is an insufficient means of
distinguishing a domain name from Complainant’s mark pursuant to Policy ¶
4(a)(i). See VeriSign, Inc. v. Tandon, D2000-1216 (WIPO Nov.
16, 2000) (finding confusing similarity between the complainant’s VERISIGN mark
and the <verisignindia.com> and <verisignindia.net> domain names
where the respondent added the word “India” to the complainant’s mark); see also Kelson Physician Partners, Inc. v. Mason, CPR003 (CPR 2000)
(finding that <kelsonmd.com> is identical or confusingly similar to the
complainant’s federally registered service mark, KELSON); see also Gardline Surveys Ltd.
v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum
Similarly, Complainant contends that the <renaissanceharbourview.com> domain name is confusingly similar to Complainant’s RENAISSANCE mark while Respondent’s <jwmarriottresort.com> and <marriottchateau.com> domain names are confusingly similar to Complainant’s MARRIOTT mark. The Panel finds that the addition of generic terms such as “harborview,” “resort,” or “chateau” in Respondent’s domain names, which prominently feature Complainant’s well-known marks, is not a means by which a domain names are distinguished from known marks under Policy ¶ 4(a)(i). See Body Shop Int’l PLC v. CPIC NET, D2000-1214 (WIPO Nov. 26, 2000) (finding that the domain name <bodyshopdigital.com> is confusingly similar to the complainant’s THE BODY SHOP trademark); see also Am. Online Inc. v. Neticq.com Ltd., D2000-1606 (WIPO Feb. 12, 2001) (finding that the addition of the generic word “Net” to the complainant’s ICQ mark, makes the <neticq.com> domain name confusingly similar to the complainant’s mark).
The Panel finds that Complainant has satisfied
Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks all rights and legitimate interests in the <marriottbangkok.com>, <bangkokmarriott.com>, <pattayamarriott.com>, <krabimarriott.com>, <chinamarriott.com>, <marriottchina.com>, <marriottsydney.com>, <renaissanceharbourview.com>, <marriottchateau.com>, <ledramarriott.com>, <jwmarriotthongkong.com>, <jwmarriottresort.com>, <marriottsingapore.com>, and <courtyardberlin.com> domain names. In instances such as this, where Complainant has made a prima facie case under Policy ¶ 4(a)(ii), the burden shifts to Respondent to set forth concrete evidence that it does possess rights or legitimate interests in the disputed domain names. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
Complainant contends that Respondent is using the <marriottbangkok.com>, <bangkokmarriott.com>, <pattayamarriott.com>, <krabimarriott.com>, <chinamarriott.com>, <marriottchina.com>, <marriottsydney.com>, <renaissanceharbourview.com>, <marriottchateau.com>, <ledramarriott.com>, <jwmarriotthongkong.com>, <jwmarriottresort.com>, <marriottsingapore.com>, and <courtyardberlin.com> domain names to operate websites containing various sponsored links to websites featuring competing Internet services. The Panel infers from Respondent’s use of the disputed domain names that it is collecting click-through fees for each Internet user redirected to competing commercial websites. The Panel finds that Respondent’s operation of websites for the purpose of collecting click-through fees is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v. Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding that the respondent’s use of the disputed domain name to redirect Internet users to websites unrelated to the complainant’s mark, websites where the respondent presumably receives a referral fee for each misdirected Internet user, was not a bona fide offering of goods or services as contemplated by the Policy); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services).
Moreover, Respondent has submitted no evidence that it is either commonly known by the disputed domain names or authorized to register domain names featuring Complainant’s mark. In the absence of such evidence, the Panel finds that Respondent has not established rights or legitimate interests pursuant to Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is using the <marriottbangkok.com>, <bangkokmarriott.com>, <pattayamarriott.com>, <krabimarriott.com>, <chinamarriott.com>, <marriottchina.com>, <marriottsydney.com>, <renaissanceharbourview.com>, <marriottchateau.com>, <ledramarriott.com>, <jwmarriotthongkong.com>, <jwmarriottresort.com>, <marriottsingapore.com>, and <courtyardberlin.com> domain names to operate websites that provides Internet users with links to various websites that offer competing Internet services. The Panel finds that Respondent’s use of the disputed domain names constitutes a disruption of Complainant’s business and evinces bad faith pursuant to Policy ¶ 4(b)(iii). See Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites).
Furthermore, Respondent’s use of the <marriottbangkok.com>, <bangkokmarriott.com>, <pattayamarriott.com>, <krabimarriott.com>, <chinamarriott.com>, <marriottchina.com>, <marriottsydney.com>, <renaissanceharbourview.com>, <marriottchateau.com>, <ledramarriott.com>, <jwmarriotthongkong.com>, <jwmarriottresort.com>, <marriottsingapore.com>, and <courtyardberlin.com> domain names will likely cause confusion as to Complainant’s sponsorship of and affiliation with the resulting websites. The Panel finds that use of confusingly similar domain names for Respondent’s own commercial gain is additional evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Anne of Green Gable Licensing Auth., Inc. v. Internetworks, AF-0109 (eResolution June 12, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) because the respondent admittedly used the complainant’s well-known mark to attract users to the respondent's website).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <marriottbangkok.com>, <bangkokmarriott.com>, <pattayamarriott.com>, <krabimarriott.com>, <chinamarriott.com>, <marriottchina.com>, <marriottsydney.com>, <renaissanceharbourview.com>, <marriottchateau.com>, <ledramarriott.com>, <jwmarriotthongkong.com>, <jwmarriottresort.com>, <marriottsingapore.com>, and <courtyardberlin.com> domain names be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: April 17, 2008
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